Defense of Claims. If a party hereto seeks indemnification under ----------------- this Section 8.01, such party (the "Indemnified Party") shall give written ------------ ----------------- notice to the other party (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 (if known and quantifiable), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party shall not relieve 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 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first: (i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and (ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheld) before entering into any settlement of a claim or ceasing to defend such claim, if pursuant to or as a result of such settlement or cessation, 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 obligations with respect to such claim, without prejudice.
Appears in 1 contract
Defense of Claims. If a party hereto seeks indemnification under ----------------- this Section 8.01, such party (the "Indemnified Party") shall give written ------------ ----------------- notice The procedures to be followed with respect to the other party (the "Indemnifying Party") after receiving written ------------------ notice defense and settlement of any action, lawsuit, proceeding, investigation or other claim against it (if made by a third party) or discovering the liability, obligation or facts giving rise to such claim for indemnification, describing the claim, the amount thereof (if known and quantifiable), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party shall not relieve 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 action, lawsuit, proceeding, investigation or other claim shall be brought or asserted by any third party which, if adversely determinedtrue, would entitle give rise to a right on the part of an Indemnified Party to be indemnified against resulting Losses in whole or in part, under this Article 10 (a "Claim") shall be as follows:
(a) If any third party asserts or proposes to assert any claim against the Indemnified Party to indemnity pursuant to this Section 8.01which, the Indemnified Party shall ------------ promptly notify if successful, might result in an obligation of the Indemnifying Party to pay indemnification under this Article 10, the Indemnifying Party, at the sole expense of the same in writingIndemnifying Party, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in may assume the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense thereof with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to . The Indemnified Party may participate in the Indemnifying -------- Party's right to assume control defense of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which claim that is defended by the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and with co-counsel of its choice; provided, that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 have the right to -------- ------- assume control of such defense and shall pay the fees and expenses of the Indemnified Party's counsel retained shall be paid by the Indemnified Party unless (i) the Indemnifying Party has agreed in writing to pay such fees and expenses, or (ii) a claim shall have been brought or asserted against the Indemnifying Party as well as the Indemnified Party, if the claim which the Indemnifying Party seeks to assume control (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right reasonably determined that there are one or more factual or legal defenses available to employ counsel separate from counsel employed by it that are in conflict with those that are available to the Indemnifying Party Party, in any which case such action and to participate in the defense thereof, but the fees and expenses of such co-counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control fails or is unable to elect to assume the defense of any such claim, the Indemnified Party may do so at the expense of the Indemnifying Party. Assuming the defense of such claim shall constitute an admission by the Indemnifying Party that such claim is a proper or valid claim for indemnification, but shall not constitute an admission by the Indemnifying Party as to the amount of Losses asserted in the claim.
(b) The Indemnifying Party shall obtain have full right to enter into any compromise or settlement that is dispositive of the matter involved; provided, that (i) except for the settlement of a Claim that involves no obligation of the Indemnified Party other than the payment of money for which indemnification is provided hereunder, the Indemnifying Party shall not settle or compromise any Claim without the prior written consent of the Indemnified Party (Party, which consent shall not be unreasonably withheldwithheld or delayed; and (ii) before entering Indemnifying Party may not consent to entry of any judgment or enter into any settlement in respect of a claim or ceasing 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 Claim that does not expressly unconditionally include an unconditional release of the Indemnified Party from all liabilities liability in respect of such Claim; provided that, if in the reasonable judgment of Indemnified Party it would be materially harmed or otherwise prejudiced by not entering into a proposed settlement or compromise and obligations with respect the Indemnifying Party reasonably withholds consent to such claimsettlement or compromise, without prejudiceIndemnified Party may enter into such settlement or compromise, but such settlement or compromise shall not be conclusive as to the existence or amount of the liability of the Indemnifying Party to the Indemnified Party or any third party.
Appears in 1 contract
Defense of Claims. If a party hereto seeks indemnification under ----------------- this Section 8.016.1, such party (the "“Indemnified Party"”) shall give written ------------ ----------------- notice to the other party parties (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 and circumstances giving rise to such claim for indemnification, describing the claim, the amount thereof (if known and quantifiable), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party shall not relieve 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 suit, action, lawsuitclaim, proceeding, investigation liability or other claim obligation (a “Proceeding”) shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Party to indemnity pursuant to this Section 8.016.1, the Indemnified Party shall ------------ promptly within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall be entitled to participate in have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, Proceeding (and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement consult with the Indemnified Party (in form and substance with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Party) pursuant to which Party and the Indemnifying Party agrees to payment of expenses; provided, however, that in the event any Proceeding shall be fully responsible for all Losses relating to such claims and that it will provide full indemnification to brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Party for all Losses relating to such claim; and
(ii) furnish full indemnity pursuant to Section 6.1, the Indemnified Party with reasonable evidence that may elect to participate in a joint defense of such Proceeding (a “Joint Defense Proceeding”) for which the Indemnifying Party is and expenses of such joint defense will be able to satisfy any shared equally by such liability; parties and provided further that the Indemnifying Party shall not have the right to -------- ------- assume control of such defense and shall pay the fees and expenses employment of counsel retained by the Indemnified Party, if the claim which the Indemnifying Party seeks shall be reasonably satisfactory to assume control (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defendboth parties. If the Indemnifying Party is permitted elects to assume and control the defense of a Proceeding, it will provide notice thereof within 30 days after the Indemnified Party has given notice of the matter and elects to do soif such Proceeding is not a Joint Defense Proceeding, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (ai) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (bii) the Indemnifying Party has failed to assume the defense and employ counsel. The Indemnifying Party shall not be liable for any settlement of any Proceeding, the defense of which it has elected to assume, which settlement is effected without the written consent of the Indemnifying Party; provided that no settlement of a Joint Defense Proceeding may be effected without the written consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party has elected to assume, the Indemnifying Party shall indemnify the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between with respect to the Indemnifying Party and the Indemnified Partysettlement or judgment. If the Indemnifying Party shall elects to assume and control the defense or in the event of any such claima Joint Defense Proceeding, the Indemnified Party shall take all reasonable efforts necessary to assist the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheld) before entering into any settlement of a claim or ceasing to defend in 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 obligations with respect to such claim, without prejudicedefense.
Appears in 1 contract
Samples: Asset Purchase Agreement (Wellness Center USA, Inc.)
Defense of Claims. If a party hereto seeks indemnification under ----------------- this Section 8.01, such party (the "Indemnified Party") shall give written ------------ ----------------- notice to the other party (the "An Indemnifying Party", at such Indemnifying Party’s own expense and through counsel reasonably chosen by such Indemnifying Party, may elect to defend any third party claim; and if it so elects, it shall, within twenty (20) business days after receiving written ------------------ notice of any actionsuch third party claim (or sooner, lawsuit, proceeding, investigation or other if the nature of such third party 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 (if known and quantifiableso requires), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party shall not relieve the Indemnifying Indemnified Party of its or his obligations hereunder except intent to the extent do so, and such failure shall have prejudiced the Indemnifying Party. In that regard, if any 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate cooperate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the third party claim. Such Indemnifying Party shall pay such Indemnified Party's claim for indemnification at ’s reasonable out-of-pocket expenses incurred in connection with such cooperation. After notice from an Indemnifying Party to an Indemnified Party of its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right election to assume control the defense of a third party claim, such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 have the right be liable 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to under this Article 9 for any legal or injure the other expenses subsequently incurred by such Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control in connection with the defense and elects to do sothereof; provided, the however, that such Indemnified Party shall have the right to employ one counsel separate from (and any necessary local counsel) to represent such Indemnified Party and all other persons entitled to indemnification in respect of such claim hereunder (which counsel employed by shall be acceptable to the Indemnifying Party in any its reasonable judgment) if, in such action and Indemnified Party’s reasonable judgment, based on the written advice of counsel to participate in the defense thereofsuch Indemnified Party, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between such Indemnified Party and such Indemnifying Party exists in respect of such claim, and in that event (i) the reasonable fees and expenses of one such separate counsel (and any necessary local counsel) for all Indemnified Parties shall be paid by such Indemnifying Party and (ii) each of such Indemnifying Party and such Indemnified Party shall have the right to direct its own defense in respect of such claim. If any Indemnifying Party elects not to defend against a third party claim, or fails to notify an Indemnified Party of its election within such twenty (20) business day period, such Indemnified Party may defend, compromise and settle such third party claim; provided, however, that no such Indemnified Party may settle or compromise any third party claim or consent to the entry of any judgment, without the prior written consent of the Indemnifying Party and the Indemnified Party(which consent shall not be unreasonably conditioned, withheld or delayed). If the The Indemnifying Party shall control may defend, compromise and settle any third party claim on such terms as it deems appropriate, provided, however, that no Indemnifying Party may settle or compromise any third party claim or consent to the defense entry of any such claimJudgment, the Indemnifying Party shall obtain without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld) before entering into any settlement of a claim conditioned, withheld or ceasing to defend such claimdelayed), if pursuant to or as a result of unless such settlement or cessation, injunction or other equitable relief will be imposed against fully and finally releases the Indemnified Party or if such settlement does not expressly unconditionally release in writing from all claims without any consideration being payable by the Indemnified Party from all liabilities and obligations with respect to such claim, without prejudiceParty.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Citizens Bancshares Corp /Ga/)
Defense of Claims. (a) If any Indemnitee receives notice of the assertion of any claim or of the commencement of any action or proceeding by any Third Party (a party hereto seeks “Third Party Claim”) against such Indemnitee, with respect to which an Indemnifying Party is obligated to provide indemnification under ----------------- this Section 8.01Agreement, the Indemnitee will give such party Indemnifying Party reasonably prompt written notice thereof, but in any event not later than ten (the "Indemnified Party"10) shall give written ------------ ----------------- notice to the other party (the "Indemnifying Party") calendar days after receiving written ------------------ receipt of notice of any actionsuch Third Party Claim; provided, lawsuithowever, 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 (if known and quantifiable), and the basis thereof; provided that the -------- failure of the Indemnitee to so notify the Indemnifying Party shall not only relieve the Indemnifying Party of from its or his obligations hereunder except obligation to indemnify the Indemnitee pursuant to this Article IX to the extent such failure shall have prejudiced the Indemnifying Party. In that regard, if any 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party is materially prejudiced by such failure (whether as a result of the same in writingforfeiture of substantive rights or defenses or otherwise). Upon receipt of notification of a Third Party Claim, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in the defense of such actionentitled, lawsuit, proceeding, investigation or other claim giving rise upon written notice to the Indemnified Party's claim for indemnification at its expenseIndemnitee, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defensethe investigation and defense thereof, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) furnish the Indemnified Party with reasonable evidence that the Indemnifying Party is and will be able to satisfy any such liability; and provided further provided, however, that the Indemnifying Party shall not have the right to -------- ------- assume control of such the defense and shall pay if (i) the fees and expenses of counsel retained by the Indemnified PartyThird Party Claim relates to or arises in connection with a criminal proceeding, if the claim which action, indictment, allegation or investigation, (ii) the Indemnifying Party seeks has failed to assume control (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed defend or is failing to vigorously prosecute or defend. If defend in good faith the Third Party Claim, (iii) the 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 Losses suffered by a Parent Indemnitee, such Losses would result in Indemnifiable Losses in excess of Twenty Million Dollars ($20,000,000), (v) the Indemnifying Party does not, in the Indemnitee’s reasonable judgment, have sufficient financial resources to satisfy the amount of any adverse judgment that is permitted reasonably likely to result with respect to such Third Party Claim, or (vi) the Indemnifying Party fails to acknowledge in writing that it would have an indemnity obligation in accordance with the terms hereof for any and all Losses resulting from such Third Party Claim. Whether or not the Indemnifying Party elects to assume the investigation and control the defense and elects to do soof any Third Party Claim, the Indemnified Party Indemnitee shall have the right to employ separate counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the investigation and defense thereof; provided, but however, that the Indemnitee shall pay the fees and expenses disbursements of such separate counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (ai) the employment thereof of such separate counsel has been specifically authorized in writing by the Indemnifying Party, (ii) the Indemnifying Party in writinghas failed to assume the defense of such Third Party Claim within a reasonable time after receipt of notice thereof, or (biii) the Indemnified Party named parties to the proceeding in which such claim, demand, action or cause of action has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between asserted include both the Indemnifying Party and such Indemnitee and, in the Indemnified reasonable judgment of counsel to such Indemnitee, there exists one or more defenses that are in conflict with those available to the Indemnifying Party. If Notwithstanding the Indemnifying Party shall control the defense of any such claimforegoing, 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 consent of the Indemnified Indemnitee, the Indemnifying Party (which shall will not be unreasonably withheld) before entering enter into any settlement of any Third Party Claim that would result in (A) the imposition of a claim consent order, injunction or ceasing to defend such claimdecree that would restrict the future activity or conduct of, if pursuant to or as impose any non-monetary liability, obligation or commitment on, the Indemnitee or any of its Affiliates, (B) a result 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 against the Indemnitee or any of its Affiliates, or (D) any monetary liability of the Indemnitee that shall not be promptly paid or reimbursed by the Indemnifying Party. Any such settlement or cessation, injunction or other equitable relief will be imposed against compromise shall include as an unconditional term thereof the Indemnified Party or if such settlement does not expressly unconditionally giving by the claimant of a release of the Indemnitee and the Indemnified Party from all liabilities liability 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 obligations 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, without prejudicebut 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 IX 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 so respond within such thirty (30) 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 this Article IX.
(c) 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 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 (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 effect of any other provision of this Article IX, 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
Samples: Merger Agreement (Knology Inc)
Defense of Claims. (a) If a party hereto seeks any Indemnitee receives notice of assertion or commencement of any Third Party Claim against such Indemnitee with respect to which an Indemnifying Party is obligated to provide indemnification under ----------------- this Section 8.01Agreement, the Indemnitee will give such party (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 "Indemnified Party") shall give 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 will have the right to participate in, or, by giving written notice to the other party (Indemnitee, to assume, the "defense of any Third Party Claim at such Indemnifying Party") after receiving written ------------------ notice of any action, lawsuit, proceeding, investigation or other claim against it 's own expense and by such Indemnifying Party's own counsel (if by a third party) or discovering reasonably satisfactory to the liability, obligation or facts giving rise to such claim for indemnification, describing the claim, the amount thereof (if known and quantifiableIndemnitee), and the basis thereof; provided that the -------- failure to so notify Indemnitee will cooperate in good faith in such defense, unless the Indemnifying Party shall not relieve is also a party to such Third Party Claim and the Indemnitee determines in good faith that joint representation would be inappropriate.
(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 of its or his obligations hereunder except to the extent such failure shall have prejudiced the Indemnifying Party. In that regard, if any 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of has elected to assume the same in writing, specifying in detail the basis defense of such claim and Third Party Claim as provided in the facts pertaining thereto last sentence of Section 10.4(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 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 will be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible liable for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 have the right to -------- ------- assume control of such defense and shall pay the fees and costs or expenses of counsel retained by the Indemnified Party, if the claim which the Indemnifying Party seeks to assume control (A) seeks non-monetary relief, (B) involves criminal paid or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defendincurred in connection therewith. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall obtain Without the prior written consent of the Indemnified Indemnitee, the Indemnifying Party (which shall will not be unreasonably withheld) before entering enter into any settlement of a 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 such claimindemnification hereunder. A failure to give timely notice or to include any specified information in any notice as provided in Sections 10.4(a) or 10.4(b) will not affect the rights or obligations of any party hereunder except and only to the extent that, if pursuant to or as a result of such settlement failure, any party which was entitled to receive such notice was deprived of its right to recover any payment under its applicable insurance coverage or cessationwas actually and materially prejudiced in its defense of such claim by the failure to receive timely notice.
(c) The Indemnifying Party will have 30 calendar days within which to respond in writing to any claim by an Indemnitee on account of an Indemnifiable Loss which does not result from a Third Party Claim (a "Direct Claim"). If the Indemnifying Party does not so respond within such 30 calendar day period, injunction or other equitable relief the Indemnifying Party will be imposed against the Indemnified Party or if such settlement does not expressly unconditionally release the Indemnified Party from all liabilities and obligations with respect deemed to have rejected such claim, without prejudice.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 X.
Appears in 1 contract
Defense of Claims. If a party hereto seeks indemnification under ----------------- this Section 8.01, such party (the "Third Party Claim is made against an Indemnified Party", (i) shall give written ------------ ----------------- notice the Applicable Indemnifying Party will be entitled to participate in the other party defense thereof and, (ii) if it so chooses, to assume the "defense thereof with counsel selected by the Applicable Indemnifying Party") after receiving written ------------------ notice , provided that in connection with such assumption such counsel is not reasonably objected to by the Indemnified Party. Should the Applicable Indemnifying Party so elect to assume the defense 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 claimThird Party Claim, the amount thereof (if known and quantifiable), and the basis thereof; provided that the -------- failure to so notify the Applicable Indemnifying Party shall will not relieve the Indemnifying Party of its or his obligations hereunder except be liable to the extent such failure shall have prejudiced the Indemnifying Party. In that regard, if any 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 for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Applicable Indemnifying Party elects to indemnity pursuant to this Section 8.01assume the defense of a Third Party Claim, the Indemnified Party shall ------------ promptly notify will (i) cooperate in all reasonable respects with the Applicable Indemnifying Party in connection with such defense and (ii) not admit any liability with respect to, or settle, compromise or discharge such Third Party Claim without the Applicable Indemnifying Party's prior written consent, as the case may be. If the Applicable Indemnifying Party shall assume the defense of any Third Party Claim, the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Indemnified Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth belowbut not control) shall be entitled to appoint lead counsel of such defense with reputable its own counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defendat its own expense. If the Applicable Indemnifying Party is permitted to does not assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any such claimThird Party Claim, the Indemnified Party may defend the same in such manner as it may deem appropriate, including settling such claim or litigation after giving notice to the Applicable Indemnifying Party of such terms and the Applicable Indemnifying Party promptly reimburse the Indemnified Party upon written request. Anything contained in this Agreement to the contrary notwithstanding, neither Applicable Indemnifying Party shall obtain be entitled to assume the prior written consent defense of the Indemnified Party (which shall not be unreasonably withheld) before entering into any settlement part of a claim or ceasing to defend such claim, if pursuant to or as a result of such settlement or cessationThird Party Claim that seeks an order, injunction or other equitable relief will be imposed or relief for other than money damages against the Indemnified Party or if such settlement does not expressly unconditionally release the Indemnified Party from all liabilities and obligations with respect to such claim, without prejudiceParty.
Appears in 1 contract
Defense of Claims. If a 30.1 A party hereto seeks seeking indemnification under ----------------- this (“Indemnified Person”) pursuant to Section 8.01, such party (the "Indemnified Party") shall give 29 may make claims for indemnification hereunder by giving written ------------ ----------------- notice thereof to the other party (the "“Indemnifying Party") after receiving written ------------------ notice of any action, lawsuit, proceeding, investigation ”). If indemnification is sought for a claim or other claim against it (if liability asserted by a third party) or discovering the liability, obligation or facts giving rise to such claim for indemnification, describing the claim, the amount Indemnified Party shall also give written notice thereof (if known and quantifiable), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party promptly after it receives notice of the claim or liability being asserted, but the failure to do so shall not relieve the Indemnifying Party of its or his obligations hereunder from any liability except to the extent that it is prejudiced by the failure or delay in giving such failure notice. Such notice shall have prejudiced summarize the basis of the claim for indemnification and any claim or liability being asserted by a third party. Within thirty (30) days after receiving such notice or such longer period as may be agreed upon by the parties, the Indemnifying Party. In that regard, if any action, lawsuit, proceeding, investigation or other Party shall give written notice to the Indemnified Party stating whether it disputes the claim shall be brought or asserted by for indemnification and whether it will defend against any third party which, if adversely determined, would entitle the Indemnified Party to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify claim or liability at its own cost and expense. If the Indemnifying Party fails to give notice that it disputes an indemnification claim within thirty (30) days after receipt of notice thereof or such longer period as may be agreed upon by the same in writingparties, specifying in detail it shall be deemed to have accepted and agreed to the basis of such claim claim, which shall become immediately due and the facts pertaining thereto and the payable.
30.2 The Indemnifying Party shall be entitled to direct the defense against a third party claim or liability with counsel selected by it (subject to the consent of the Indemnified Party, which consent shall not be unreasonably withheld, delayed or conditioned) as long as the Indemnifying Party is conducting a good faith and diligent defense. The Indemnified Party shall at all times have the right to fully participate in the defense of such actiona third party claim or liability at its own expense directly or through counsel; provided, lawsuithowever, proceeding, investigation or other claim giving rise that if the named parties to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to action or proceeding include both the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with Party and the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) furnish is advised that representation of both parties by the same counsel would be inappropriate under applicable standards of professional conduct, the Indemnified Party with reasonable evidence that may engage separate counsel at the expense of the Indemnifying Party Party. If no such notice of intent to dispute and defend a third party claim or liability is and will be able to satisfy any such liability; and provided further that given by the Indemnifying Party shall Party, or if such good faith and diligent defense is not have the right being or ceases to -------- ------- assume control of such defense and shall pay the fees and expenses of counsel retained be conducted by the Indemnified Indemnifying Party, if the claim which the Indemnifying Party seeks to assume control (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereofright, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnifying Party, to undertake the defense of such claim or liability (with counsel selected by the Indemnified Party), and to compromise or settle it, exercising reasonable business judgment. If the third party claim or liability is one that by its nature cannot be defended solely by the Indemnifying Party, then the Indemnified Party unless (a) shall make available such information and assistance as the employment thereof has been specifically authorized by Indemnifying Party may reasonably request and shall cooperate with the Indemnifying Party in writingsuch defense, or (b) at the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists expense of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the .
30.3 The Indemnifying Party shall control have the defense right to elect to settle any claim in respect of any such claimwhich indemnity may be sought pursuant to Section 29, for which it has duly assumed the Indemnifying Party shall obtain defense, with the prior written consent of the Indemnified Party (Party, which shall consent will not be unreasonably withheld) before entering into , delayed or conditioned. The Indemnified Party shall have the right to elect to settle any settlement claim in respect of which indemnity may be sought hereunder, for which it has duly assumed the defense, with the Indemnifying Party’s written consent, which consent will not be unreasonably withheld.
30.4 The Indemnifying Party shall, upon payment of an indemnity in full under this Agreement, be subrogated to all rights of the Indemnified Party with respect to the claims to which such indemnification relates.
30.5 Each party to this Agreement shall use reasonable commercial efforts not to assert against the other party any claim of indemnification for Losses in connection with this Agreement unless the asserting party has given the other party reasonable prior written notice of the claim.
30.6 In cases of customer claims that allege a defect in the Products, Company shall first initiate a prompt and thorough investigation of such customer claim or ceasing to defend and conclude that such claim, if pursuant to or as defect was a result of a failure to comply with the Manufacturer’s obligations under this Agreement before asserting a claim of indemnification against Manufacturer. Manufacturer shall cooperate with Company in any such settlement or cessationinvestigation, injunction or other equitable relief will but shall not be imposed against bound by the Indemnified Party or if such settlement does not expressly unconditionally release findings of the Indemnified Party from all liabilities and obligations with respect to such claim, without prejudiceCompany.
Appears in 1 contract
Samples: Manufacturing and Purchasing Agreement (Vita Coco Company, Inc.)
Defense of Claims. If As promptly as practicable after its discovery of grounds for a party hereto seeks claim for indemnification under ----------------- hereunder, the applicable Buyer Indemnified Party or Seller Indemnified Party (for the purposes of this Section 8.016.3, such party (the "each, an “Indemnified Party"”) shall give deliver a written ------------ ----------------- notice claim for indemnification to the other party Sellers’ Representative or Buyer, as applicable (the "an “Indemnifying Party") after receiving written ------------------ notice of any action”), lawsuitspecifying in reasonable detail the basis therefor and, 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 claimknown, the amount thereof (if known and quantifiable)amount, and or an estimate of the basis thereof; provided that amount, of the -------- failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its or his obligations hereunder except to the extent such failure shall have prejudiced the Indemnifying PartyLosses arising therefrom. In that regard, if any 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 to indemnity pursuant to this Section 8.01Thereafter, the Indemnified Party shall ------------ promptly notify provide to the Indemnifying Party all information and documentation reasonably available to it to support and verify such claim; provided, however, if such claim involves or otherwise requires the disclosure of trade secrets or other confidential proprietary information of the same in writingIndemnified Party to a third party, specifying in detail the basis Indemnifying Party will seek and obtain, at its own expense, a protective order which is reasonably acceptable to the Indemnified Party with respect to such trade secrets or other confidential proprietary information. The failure of any Indemnified Party to comply with the prior two sentences shall not relieve the applicable Indemnifying Party from any liability under this ARTICLE 6 with respect to such matter, except to the extent the Indemnifying Party is actually prejudiced by such failure to comply. If the facts giving rise to a claim for indemnification hereunder arise out of the claim of any third party, the Indemnifying Party may, at its option, assume the defense thereof, with counsel reasonably satisfactory to the Indemnified Party, at its sole cost and expense, so long as (i) the Indemnifying Party gives written notice to the Indemnified Party within fifteen (15) days after the Indemnified Party has provided the Indemnifying Party with notice of such third party claim that the Indemnifying Party will indemnify the Indemnified Party from and against the facts pertaining thereto entirety of any and all Losses the Indemnified Party may suffer from, arising out of the third party claim, (ii) such claim involves only money damages and does not seek an order, injunction or other equitable relief against any Indemnified Party, (iii) the Indemnified Party shall have reasonably concluded that there is not a conflict of interest between the Indemnified Party and the Indemnifying Party shall be entitled to participate in the defense of such actionclaim, lawsuit(iv) the Indemnifying Party conducts defense of the third party claim in a reasonably active and diligent manner, proceeding(v) if such claim is asserted directly or indirectly by or on behalf a person that is a current or prospective customer of Company or Buyer of any of its Affiliates, investigation or other claim giving rise to the Indemnified Party's , in its reasonable judgment, has not determined that the Indemnifying Party’s defense thereof could reasonably be expected to have a material and adverse effect on the Indemnified Party’s (or Buyer’s or any of its Affiliates’ or Company’s) existing or prospective relationship with such current or prospective customer, (vi) if such claim for indemnification at its expense, and at its option (is subject to the limitations set forth below) shall be entitled to appoint lead counsel in Section 6.1(e), such claim asserts an amount of such defense Losses which, when taken together with reputable counsel reasonably acceptable all amounts paid for resolved indemnification claims that are subject to the limitations set forth in Section 6.1(e) with all amounts the maximum aggregate amount of Losses alleged in all other unresolved indemnification claims that are subject to the limitations set forth in Section 6.1(e), does not exceed the Cap, (vii) the Indemnified Party; provided that, as a condition precedent Party has not reasonably concluded that there may be one or more legal defenses available to such Indemnified Party or other Indemnified Parties that are not available to the Indemnifying -------- Party and (viii) such claim does not involve matters arising under Environmental Law and relating to any Facilities; provided, notwithstanding the Indemnifying Party's right to assume control ’s assumption of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory defense of a claim pursuant to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do soforegoing, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such any claim with counsel employed selected by the Indemnified Party subject to the Indemnifying Party’s right to direct the defense (the fees and disbursements of such counsel in such circumstances shall be at the expense of the Indemnified Party unless (a) Party). After any assumption of the employment thereof has been specifically authorized defense of any claim by the Indemnifying Party and only for so long as the conditions set forth in writingsubclauses (i) through (viii) of the immediately prior sentence with respect to such claim remain satisfied, or (b) the it shall not be liable to any Indemnified Party has been advised for any legal expenses incurred by legal counsel that a any Indemnified Party in connection with the defense or prosecution thereof other than reasonable likelihood exists costs of a conflict investigation and any costs incurred in the course of interest between the Indemnifying such defense. The Indemnified Party and the Indemnified Party. If the Indemnifying Party shall control each fully cooperate as reasonably requested by the other in the defense of any thereof and shall furnish such claim, the records and information and attend such proceedings as may be reasonably requested in connection herewith. The Indemnifying Party shall obtain not settle any indemnifiable claim or demand without the prior written consent of the Indemnified Party Party, unless the settlement (which shall i) will be fully satisfied by payment of money by the Indemnifying Party, (ii) does not be unreasonably withheldinvolve Taxes that would affect Buyer in a post-Closing period, (iii) before entering into any settlement results in the full and general release of a claim or ceasing the Indemnified Parties from all liabilities relating to defend such the claim, if pursuant to (iv) involves no finding or as a result admission of such settlement any violation of Law or cessationthe rights of any person on the part of any Indemnified Party, injunction or other equitable relief will be imposed against (v) does not require the modification by the Indemnified Party of any business practice, and (vi) contains as an unconditional term thereof the delivery by the claimant or plaintiff, if such settlement does not expressly unconditionally applicable, to the Indemnifying Party of a written release of the Indemnified Party from all liabilities and obligations with respect relating to such the applicable claim, without prejudice.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Smart Balance, Inc.)
Defense of Claims. If Except as otherwise set forth in the last sentence of this Section 9.6, in connection with any claim which may give rise to indemnity under this Article IX resulting from or arising out of any Action against an Indemnitee by a Person that is not a party hereto seeks indemnification under ----------------- this Section 8.01hereto, the Indemnifying Party may (unless such party (the "Indemnified Party") shall give Indemnitee elects not to seek indemnity hereunder for such claim), upon written ------------ ----------------- notice sent at any time to the other party (relevant Indemnitee, assume the "Indemnifying Party") after receiving written ------------------ notice defense of any actionsuch Action, lawsuitto the extent that the Action relates only to monetary damages and the Indemnifying Party provides assurances, proceeding, investigation or other claim against it (if by a third party) or discovering the liability, obligation or facts giving rise reasonably satisfactory to such claim for indemnificationIndemnitee, describing the claim, the amount thereof (if known and quantifiable), and the basis thereof; provided that the -------- failure Indemnifying Party will be financially able to so notify satisfy such claim in full if such Action is decided adversely. The Indemnifying Party shall select counsel reasonably acceptable to such Indemnitee to conduct the defense of such Action, shall take all steps reasonably necessary in the defense or settlement thereof and shall at all times diligently and promptly pursue the resolution thereof. If the Indemnifying Party shall not relieve have assumed the defense of any Action in accordance with this Section 9.6, the Indemnifying Party shall be authorized to consent to a settlement of, or the entry of its or his obligations hereunder except any judgment arising from, any such Action, to the extent such failure shall have prejudiced that the Indemnifying Partysettlement requires only the payment of monetary damages, includes no injunctive provisions or performance requirements of the Indemnitee and includes no admission of guilt or liability. In that regardOr in the alternative, if any 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party will seek consent of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and Indemnitee (which consent shall not be unreasonably withheld or delayed). If the Indemnifying Party has so elected to assume the defense, each Indemnitee shall be entitled to participate in (but not control) the defense of any such action, lawsuitwith its own counsel and, proceedingexcept as provided herein, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its own expense. Each Indemnitee shall, and at shall cause each of its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense Affiliates, officers, employees, consultants and agents to, cooperate fully with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to in the Indemnified Party for all Losses relating to such claim; and
(ii) furnish the Indemnified Party with reasonable evidence that defense of any Action being defended by the Indemnifying Party is and will be able pursuant to satisfy any such liability; and provided further that the Indemnifying Party shall not have the right to -------- ------- assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party, if the claim which the Indemnifying Party seeks to assume control (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defendthis Section 9.6. If the Indemnifying Party is permitted to does not assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any such claimAction resulting therefrom in accordance with the terms of this Section 9.6, or the Indemnifying Party shall obtain does not acknowledge to the prior written consent Indemnitee the Indemnitee’s right to indemnity pursuant hereto in respect of the Indemnified Party (which shall not be unreasonably withheld) before entering into any settlement of a claim or ceasing to defend such claim, if pursuant to or as a result entirety of such settlement claim (as such claim may have been modified through written agreement of the parties) or cessationthe Indemnifying Party does not provides assurances, injunction or other equitable relief reasonably satisfactory to such Indemnitee, that the Indemnifying Party will be imposed against the Indemnified Party or financially able to satisfy such claim in full if such settlement does not expressly unconditionally release Action is decided adversely, such Indemnitee may defend against such Action in such manner as it may deem appropriate at the Indemnified Party from all liabilities and obligations with respect to such claim, without prejudicecost of the Indemnifying Party.
Appears in 1 contract
Samples: Merger Agreement (COMMITTED CAPITAL ACQUISITION Corp)
Defense of Claims. If a Whenever any claim shall arise for indemnification hereunder, the party hereto seeks entitled to indemnification under ----------------- this Section 8.01, such party (the "Indemnified Party") shall give written ------------ ----------------- notice to promptly notify the other party (the "Indemnifying Party") after receiving written ------------------ notice of any actionthe claim and, lawsuitwhen known, proceeding, investigation or other claim against it (if by a third party) or discovering the liability, obligation or facts giving rise constituting the basis for such claim. The Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such portion of the claim for indemnification, describing the claim, the amount thereof as to which (if known and quantifiable), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its or his obligations hereunder except only to the extent such failure shall have prejudiced to which) the Indemnifying Party. In that regard, if any action, lawsuit, proceeding, investigation or other claim shall be brought or asserted 's ability to defend has been prejudiced by any third party which, if adversely determined, would entitle the Indemnified Party to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expensefailure to provide prompt notice of a claim. The Indemnifying Party may, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable upon written notice to the Indemnified Party; provided thatParty within 30 calendar days of receipt of the notice specified in the first sentence of this paragraph, as assume the defense of any such claim, or any discrete portion of a condition precedent claim if the Indem nifying Party acknowledges to the Indemnifying -------- Indemnified Party the Indemnified Party's right to assume control indemnity pursuant hereto in respect of the entirety of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defendrelevant portion. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control assumes the defense of any such claim, the Indemnifying Party shall obtain select nationally recognized counsel or counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim, and shall take reasonable steps in the defense or settlement thereof. If the Indemnifying Party shall have assumed the defense of any claim in accordance with this Section 8.3, the Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any such claim, without the prior written consent of the Indemnified Party; PROVIDED, HOWEVER, that the Indemnifying Party (which shall not pay or cause to be unreasonably withheld) before entering into any settlement of a claim or ceasing to defend such claim, if pursuant to or as a result paid all amounts arising out of such settlement or cessationjudgment concurrently with the effectiveness thereof; PROVIDED, injunction or other equitable relief will FURTHER, that the Indemnifying Party shall not be imposed against authorized to encumber any of the assets of the Indemnified Party or to agree to any restriction that would apply to the Indemnified Party, or to any other Buyer or BP Indemnitee, as applicable, or to its conduct of business or to any other Buyer or BP Indemnitee, as applicable, or to their conduct of business; and PROVIDED, FURTHER, that if such settlement does not expressly unconditionally contain a complete release of the Indemnified Party from all liabilities and obligations with respect to such claim, without prejudicethe Indemnifying Party shall continue to be obligated to indemnify the Indemnified Party with respect to such claim. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. The Indemnified Party shall, and shall cause each of its Affiliates, officers, employees, consultants and agents and each other Buyer or BP Indemnitee, as applicable, to cooperate fully with the Indemnifying Party in the defense of any claim pursuant to this Section 8.3. If the Indemnifying Party does not assume the defense of any claim resulting therefrom in accordance with the terms of this Section 8.3, the Indemnified Party may defend against such claim in such manner as it may reasonably deem appropriate, including settling such claim after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may reasonably deem appropriate.
Appears in 1 contract
Defense of Claims. (a) If a an Indemnified Party shall receive written notice of the assertion of any third party hereto seeks indemnification claim with respect to which an Indemnifying Party is obligated under ----------------- this Section 8.01Agreement to provide indemnification, such party (the "Indemnified Party") Party shall give written ------------ ----------------- notice to the other party (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 (if known and quantifiable), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party prompt notice thereof; provided, however, that the failure of any Indemnified Party to give such notice shall not relieve the any Indemnifying Party of its or his obligations hereunder under this Article XII, except to the extent that such Indemnifying Party is actually prejudiced by such failure to give notice. Such notice shall have prejudiced describe the claim in reasonable detail, and, if practicable, shall indicate the estimated amount of the Indemnifiable Loss that has been or may be sustained by such Indemnified Party.
(b) An Indemnifying Party. In that regard, if any action, lawsuit, proceeding, investigation or other claim at such Indemnifying Party's own expense and through counsel chosen by such Indemnifying Party (which counsel shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Party to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant ), may elect to which defend any third party claim; and if it so elects, it shall, within 20 Business Days after receiving notice of such third party claim (or sooner, if the Indemnifying Party agrees to be fully responsible for all Losses relating to nature of such claims and that it will provide full indemnification to third party claim so requires), notify the Indemnified Party for all Losses relating of its intent to do so, and such claim; and
(ii) furnish the Indemnified Party with reasonable evidence that shall cooperate in the defense of such third party claim. Such Indemnifying Party is and will be able shall pay such Indemnified Party's reasonable out-of-pocket expenses incurred in connection with such cooperation. After notice from an Indemnifying Party to satisfy any an Indemnified Party of its election to assume the defense of a third party claim, such liability; and provided further that the Indemnifying Party shall not have the right be liable 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to under this Article XII for any legal or injure the other expenses subsequently incurred by such Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control in connection with the defense and elects to do sothereof; provided, the however, that such Indemnified Party shall have the right to employ one counsel separate from to represent such Indemnified Party and all other persons entitled to indemnification in respect of such claim hereunder (which counsel employed by shall be reasonably acceptable to the Indemnifying Party) if, in such Indemnified Party's reasonable judgment, either a conflict of interest between such Indemnified Party and such Indemnifying Party exists in any respect of such action claim or there may be defenses available to such Indemnified Party which are different from or in addition to those available to such Indemnifying Party, and to participate in that event (i) the defense thereof, but the reasonable fees and expenses of such separate counsel employed shall be paid by the such Indemnifying Party and (ii) each of such Indemnifying Party and such Indemnified Party shall be at have the expense right to direct its own defense in respect of the such claim. If any Indemnifying Party elects not to defend against a third party claim, or fails to notify an Indemnified Party unless (a) of its election within a reasonable period of time, such Indemnified Party may defend, compromise and settle such third party claim; provided, however, that no such Indemnified Party may, without the employment thereof has been specifically authorized by prior written consent of the Indemnifying Party in writing(which consent shall not be unreasonably withheld), settle or (b) compromise any third party claim or consent to the Indemnified Party has been advised entry of any Judgment which does not include as an unconditional term thereof the delivery by legal counsel that a reasonable likelihood exists of a conflict of interest between such third party to the Indemnifying Party and the Indemnified Partyof a written release from all liability in respect of such third party claim. If the The Indemnifying Party shall control the defense of may defend, compromise and settle any third party claim on such claimterms as it deems appropriate, the provided, however, that no Indemnifying Party shall obtain may, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld) before entering into ), settle or compromise any settlement of a third party claim or ceasing consent to defend the entry of any Judgment which does not include as an unconditional term thereof the delivery by such claim, if pursuant third party to or as a result of such settlement or cessation, injunction or other equitable relief will be imposed against the Indemnified Party or if of a written release from all liability in respect of such settlement does not expressly unconditionally release the third party claim. If any Indemnifying Party elects to defend against a third party claim, no Indemnified Party from all liabilities and obligations with respect shall settle or compromise on such claim or consent to such claimthe entry of a judgment without the prior written consent of the Indemnifying Party, without prejudicewhich consent shall not be unreasonably withheld.
Appears in 1 contract
Defense of Claims. (a) If any Indemnitee receives notice of the assertion of any claim or of the commencement of any action or proceeding by any Person or Governmental Entity that is not a party hereto seeks to this Agreement (a "Third Party Claim") against such Indemnitee, with respect to which an Indemnifying Party is obligated to provide indemnification under ----------------- this Section 8.01Agreement, the Indemnitee will give such party (the "Indemnified Party") shall give Indemnifying Party reasonably prompt written ------------ ----------------- notice to the other party (the "Indemnifying Party") thereof, but in any event not later than 20 calendar days after receiving written ------------------ receipt of notice of any actionsuch Third Party Claim; provided, lawsuithowever, 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 (if known and quantifiable), and the basis thereof; provided that the -------- failure of the Indemnitee to so notify the Indemnifying Party shall not only relieve the Indemnifying Party of from its or his obligations hereunder except obligation to indemnify the Indemnitee pursuant to this Article XIII to the extent such failure shall have prejudiced the Indemnifying Party. In that regard, if any 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party is materially prejudiced by such failure (whether as a result of the same in writingforfeiture of substantive rights or defenses or otherwise). Upon receipt of notification of a Third Party Claim, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in the defense of such actionentitled, lawsuit, proceeding, investigation or other claim giving rise upon written notice to the Indemnified Party's claim for indemnification at its expenseIndemnitee, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of the investigation and defense thereof if such defense, it must first:
(i) enter into an Indemnifying Party delivers a written agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant Indemnitee agreeing to which indemnify the Indemnifying Party agrees to be fully responsible for all Losses relating with respect to such claims and Third Party Claim; provided that it will provide full indemnification notwithstanding anything herein to the Indemnified contrary, the Indemnifying Party for all Losses relating shall have no right to such claim; and
assume or continue the defense of any Third Party Claim (iiand the Indemnitee shall have the exclusive right to defend it) furnish if (i) the Indemnified Party with reasonable evidence 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 and will be able to satisfy any such liability; and provided further that presented for the Indemnifying Party shall not have from defense of 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 Third Party seeks to assume control (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospectsClaim, or (Diii) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted 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 control the defense and elects to do soof any Third Party Claim, the Indemnified Party Indemnitee shall have the right to employ one separate counsel (plus one separate from counsel employed by the Indemnifying Party in any such action local counsel) and to participate in the investigation and defense thereof; provided, but however, that the Indemnitee shall pay the reasonable fees and expenses disbursements of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Partyseparate counsel. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall obtain Without the prior written consent of the Indemnified Indemnitee, the Indemnifying Party (which shall will not be unreasonably withheld) before entering 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. If a claim 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's willingness to accept the settlement offer and pay the amount called for by such offer without reservation of any rights or ceasing defenses against the Indemnitee, the Indemnitee may continue to defend contest such claim, if pursuant 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 (A) the amount of the settlement offer that the Indemnitee declined to accept or as a result (B) the aggregate Indemnifiable Losses 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 obligations 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 and the Indemnifying Party will have a period of 30 calendar days within which to respond in writing to such claim.
(c) If, without prejudiceafter 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 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 (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 effect of any other provision of this Article XIII 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
Samples: Asset Purchase Agreement (Fleming Companies Inc /Ok/)
Defense of Claims. If a party hereto seeks indemnification under ----------------- this Section 8.01, such party (the "Indemnified Party") shall give written ------------ ----------------- notice In connection with any claim giving rise to the other party (the "Indemnifying Party") after receiving written ------------------ notice indemnity hereunder resulting from or arising out of any action, lawsuit, proceeding, investigation claim or other claim against it (if legal proceeding by a third party) or discovering , Parent shall give the liability, obligation or facts giving rise to such claim for indemnification, describing the claim, the amount thereof (if known and quantifiable), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party shall not relieve 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 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis Shareholder Representative prompt notice of such claim and the facts pertaining thereto Indemnifying Party at its sole cost and expense (the sole source of satisfaction of which shall be the Escrow Account pursuant to the terms of the Escrow Agreement) and with counsel reasonably satisfactory to the Parent Indemnified Party may, upon written notice to the Parent Indemnified Party, assume the defense of any such claim or legal proceeding if (1) the Escrow Account is comprised of sufficient financial resources to defend against such third-party claim and fulfill the Indemnifying Party's highest reasonably likely Losses with respect to such claim or legal proceeding, (2) the third-party claim does not seek an injunction or other equitable relief against or adversely affecting a Parent Indemnified Party, (3) the Indemnifying Party acknowledges in writing its obligation to indemnify the Parent Indemnified Party against any Losses that may result from the third-party claim (subject to the sufficiency of the funds in the Escrow Account), and (4) the Indemnifying Party agrees in writing not to settle such claim or proceeding without the prior written consent of the Parent Indemnified Party, which consent shall not be unreasonably withheld. The Parent Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel at its own expense; provided, however, that if there are one or more legal defenses available to the Parent Indemnified Party that conflict with those available to the Indemnifying Party, or the Indemnifying Party fails to take reasonable steps necessary to defend diligently the claim after receiving notice from the Parent Indemnified Party that it believes that the Indemnifying Party has failed to do so, the Parent Indemnified Party may assume the defense of such claim; and provided, further, that the Parent Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Parent Indemnified Party assumes the defense of the claim, the Parent Indemnified Party shall be reimbursed out of the Escrow Account pursuant to the terms of the Escrow Agreement on a monthly basis for reasonable fees and expenses of counsel retained by the Parent Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such actionclaim, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification with its counsel at its own expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted thereafter seeks to assume and control question the defense and elects to do so, manner in which the Parent Indemnified Party shall have defended such third party claim or the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, amount or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense nature of any such claimsettlement, the Indemnifying Party shall obtain have the prior written consent burden to prove, by a preponderance of the evidence, that the Parent Indemnified Party (which shall did not defend or settle such third-party claim in a reasonable, prudent manner. The parties agree to render, without compensation, to each other such assistance as they may reasonably require of each other and to cooperate in good faith with each other, including providing such documents and records as may be unreasonably withheld) before entering into any settlement of a claim or ceasing to defend such claim, if pursuant to or as a result pertinent and the time and attention of such settlement personnel as may reasonably be necessary, in order to ensure the proper and adequate defense of any action , suit or cessationproceeding, injunction whether 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 obligations with respect subject to such claim, without prejudiceindemnification hereunder.
Appears in 1 contract
Defense of Claims. 16.4.1 The Indemnified Party shall have the right, but not the obligation, to contest, defend and litigate any claim, action, suit or proceeding by any third party alleged or asserted against such Party in respect of, resulting from, related to or arising out of any matter for which it is entitled to be indemnified hereunder, and reasonable costs and expenses thereof shall be indemnified by the Indemnifying Party. If a party hereto seeks indemnification under ----------------- this Section 8.01, such party (the "Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party") shall give written ------------ ----------------- notice Party in respect of loss to the other party (the "Indemnifying Party") after receiving written ------------------ notice of any actionfull extent provided by this Article 16, 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 (if known and quantifiable), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party shall not relieve be entitled, at its option, to assume and control in the defense of such claim, action, suit or proceeding, liabilities, payments and obligations at its expense and through the counsel of its choice prompt notice of its intention to do so to the Indemnified Party and reimburses the Indemnified Party for the reasonable cost and expenses incurred by the Indemnified Party prior to the assumption by the Indemnifying Party of its such defense.
16.4.2 The Indemnified Party shall not settle or his obligations hereunder except compromise any claim, demand, action, suit or proceeding without the prior written consent of the Indemnifying Party unless the Indemnifying Party provides such security to the extent such failure shall have prejudiced the Indemnifying Party. In that regard, if any action, lawsuit, proceeding, investigation or other claim Indemnified Party as shall be brought or asserted reasonably required by any third party which, if adversely determined, would entitle the Indemnified Party to indemnity pursuant secure the loss to be indemnified hereunder to the extent so compromised or settled.
16.4.3 If the Indemnified Party has exercised its rights under this Section 8.01Article 16.4.1 , the Indemnified Party shall ------------ promptly notify not be entitled to settle or compromise any claim, action, suit or proceeding without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed).
16.4.4 For the avoidance of doubt, it is hereby expressly clarified that in the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and event the Indemnifying Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at exercises its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do sorights under Article 16.4.1, the Indemnified Party shall nevertheless have the right to employ its own counsel, and such counsel separate from counsel employed by the Indemnifying Party in any such action and to may participate in the defense thereofsuch action, but the reasonable fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) Party, when and as incurred, unless:
16.4.4.1 the employment thereof of counsel by such party has been specifically authorized authorised in writing by the Indemnifying Party in writing, or (b) Party; or
16.4.4.2 the Indemnified Party has been advised by legal counsel shall have reasonably concluded that a reasonable likelihood exists of there may be a conflict of interest between the Indemnifying Party and the Indemnified Party. If Party in the conduct of the defense of such action; or
16.4.4.3 the Indemnifying Party shall control not, in fact, have employed independent counsel reasonably satisfactory to the Indemnified Party, to assume the defense of any such action and shall have been so notified by the Indemnified Party; or
16.4.4.4 the Indemnified Party shall have reasonably concluded and specifically notified the Indemnifying Party either:
(i) that there may be specific defenses available to it which are different from or additional to those available to the Indemnifying Party; or
(ii) that such claim, action, suit or proceeding involves or could have a material adverse effect upon it beyond the Indemnifying scope of this Agreement: Provided that if Sub-parts (b), (c) or (d) of this Article 16.4.4 shall be applicable, the counsel for the Indemnified Party shall obtain have the prior written consent right to direct the defense of such claim, demand, action, suit or proceeding on behalf of the Indemnified Party (which shall not be unreasonably withheld) before entering into any settlement of a claim or ceasing to defend such claimParty, if pursuant to or as a result and the reasonable fees and disbursements of such settlement or cessation, injunction counsel shall constitute legal 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 obligations with respect to such claim, without prejudiceexpenses hereunder.
Appears in 1 contract
Defense of Claims. (a) If a party hereto seeks indemnification under ----------------- this Section 8.01, such party (the "Indemnified Party") shall give written ------------ ----------------- notice to the other party (the "Indemnifying Party") after receiving written ------------------ any Indemnitee receives notice of the assertion 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, or the amount thereof (if known and quantifiable)commencement of any Third Party Claim, and or the basis thereof; provided that Indemnitee intends to seek indemnity hereunder, then the -------- failure to so notify Indemnitee will promptly provide the Indemnifying Party shall with a Notice of Claim for Indemnity, but in any event not later than 20 calendar days after receipt of such notice of the assertion of any claim or the commencement of any Third Party Claim. The failure by an Indemnitee to provide a Notice of Claim for Indemnity to an Indemnifying Party of a Third Party Claim will not relieve the Indemnifying Party of its or his obligations hereunder any indemnification responsibility under this Article VII, except to the extent extent, if any, that such failure shall materially prejudices the ability of the Indemnifying Party to defend such Third Party Claim.
(b) Without prejudice to the rights of the Indemnitee prior thereto, the Indemnifying Party will have prejudiced the right to control the defense, compromise or settlement of the Third Party Claim with its own counsel (reasonably satisfactory to the Indemnitee) if the Indemnifying Party delivers written notice to the Indemnitee within 30 calendar days following the Indemnifying Party's receipt of Notice of Claim for Indemnity from the Indemnitee setting forth its undertaking to defend SUCH THIRD PARTY CLAIM IN ACCORDANCE WITH THIS ARTICLE VII; PROVIDED, HOWEVER, that the Indemnifying Party will not enter into any settlement of any Third Party Claim which would impose or create any obligation or any financial or other liability on the part of the Indemnitee. In that regardits defense, if compromise or settlement of any actionThird Party Claim, lawsuitthe Indemnifying Party will timely provide the Indemnitee with such information with respect to such defense, proceedingcompromise or settlement as the Indemnitee may reasonably request, investigation and each party shall reasonably cooperate with each other in the defense of such Third Party Claim. No settlement of any Claim involving performance or any remedy other than the payment of money damages may be made without the consent of the party from whom such performance or other claim remedy would be required, which consent shall not be brought or asserted unreasonably withheld. The Indemnitee will be entitled (at the Indemnitee's expense) to participate in the defense by any third party which, if adversely determined, would entitle the Indemnified Party to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of any Third Party Claim with its own counsel.
(c) In the same event that the Indemnifying Party does not undertake the defense, compromise or settlement of a Third Party Claim in writingaccordance with subsection (b) of this Section 7.4, specifying in detail the basis Indemnitee will have the right to control the DEFENSE OR SETTLEMENT OF SUCH THIRD PARTY CLAIM WITH COUNSEL OF ITS CHOOSING; PROVIDED, HOWEVER, that the Indemnitee will not settle or compromise any Third Party Claim without the Indemnifying Party's prior written consent, unless the terms of such claim and settlement or compromise release the facts pertaining thereto Indemnitee and the Indemnifying Party shall from any and all liability with respect to the Third Party Claim. The Indemnifying Party will be entitled (at the Indemnifying Party's expense) to participate in the defense of such actionany Third Party Claim with its own counsel.
(d) Any Direct Claim will be asserted by giving the Indemnifying Party a Notice of Claim for Indemnity as promptly as reasonably possible after discovery thereof.
(e) If the amount of any Indemnifiable Loss, lawsuit, proceeding, investigation or other claim giving rise at any time subsequent to the Indemnified Party's claim for indemnification at its expensemaking of an Indemnity Payment, and at its option is reduced by recovery, settlement or otherwise under or pursuant to any insurance coverage, Tax Benefit or pursuant to any claim, recovery, settlement against or with any person or entity which is not an Affiliate of the Indemnitee (subject such reduction, whether occurring before or after the Indemnify Payment, is referred to herein as a "Third-Party Recovery"), the limitations set forth below) shall be entitled to appoint lead counsel amount of such defense reduction, in each case less any costs, expenses, or taxes incurred by the Indemnitee in connection therewith, together with reputable counsel reasonably acceptable interest thereon from the date of payment thereof at the prime rate of interest as announced from time to time by Citibank N.A. plus 1%, will promptly be repaid by the Indemnified Party; provided that, as a condition precedent Indemnitee to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheld) before entering into any settlement of a claim or ceasing to defend such claim, if pursuant to or as a result of such settlement or cessation, 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 obligations with respect to such claim, without prejudice.
Appears in 1 contract
Defense of Claims. If If, within ten (10) Business Days after giving a party hereto seeks indemnification under ----------------- this Section 8.01, such party (the "Indemnified Party") shall give written ------------ ----------------- notice Notice of Claim regarding a Claim to the other party (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 (if known and quantifiable), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party shall not relieve the pursuant to Section 16.2, Indemnified Party receives Notice from 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 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled has elected to participate in assume the defense of such actionClaim, lawsuit, proceeding, investigation or other claim giving rise to the Indemnifying Party will not be liable for any legal expenses subsequently incurred by Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement Party in connection with the defense thereof; provided, however, that if Indemnifying Party fails to take reasonable steps necessary to defend diligently such Claim within ten (10) Business Days after receiving Notice from Indemnified Party (in form and substance reasonably satisfactory to the that Indemnified Party) pursuant to which the Party believes Indemnifying Party agrees has failed to be take such steps, or if Indemnifying Party has not undertaken fully responsible for to indemnify Indemnified Party in respect of all Indemnifiable Losses relating to such claims and that it will provide full indemnification to the matter, Indemnified Party may assume its own defense, and Indemnifying Party will be liable for all Losses relating to such claim; and
(ii) 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 have the right to -------- ------- assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Partycosts or expenses, if the claim which the Indemnifying Party seeks to assume control (A) seeks non-monetary reliefincluding attorneys’ fees, (B) involves criminal paid or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defendincurred in connection therewith. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall obtain Without the prior written consent of the Indemnified Party, Indemnifying Party (which shall will not be unreasonably withheld) before entering enter into any settlement of any Claim which would lead to liability or create any financial or other obligation on the part of Indemnified Party for which Indemnified Party is not entitled to indemnification hereunder; provided, however, that Indemnifying Party may accept any settlement without the consent of Indemnified Party if such settlement provides a claim full release to Indemnified Party and no requirement that Indemnified Party acknowledge fault or ceasing culpability. If a firm offer is made to settle a Claim without leading to liability or the creation of a financial or other obligation on the part of Indemnified Party for which Indemnified Party is not entitled to indemnification hereunder and Indemnifying Party desires to accept and agrees to such offer, Indemnifying Party will give Notice to Indemnified Party to that effect. If Indemnified Party fails to consent to such firm offer within ten (10) calendar days after its receipt of such Notice, Indemnified Party may continue to contest or defend such claimClaim and, if pursuant in such event, the maximum liability of Indemnifying Party to or as a result such Claim will be the amount of such settlement offer, plus reasonable costs and expenses paid or cessation, injunction or other equitable relief will be imposed against the incurred by Indemnified Party or if up to the date of such settlement does not expressly unconditionally release the Indemnified Party from all liabilities and obligations with respect to such claim, without prejudiceNotice.
Appears in 1 contract
Samples: Renewable Power Purchase Agreement
Defense of Claims. (a) If a party hereto seeks indemnification under ----------------- this Section 8.01Purchaser Indemnitee or Seller Indemnitee, such party as the case may be (the an "Indemnified Party") ), shall give written ------------ ----------------- receive notice of the assertion of any claim with respect to the other which a party required to provide indemnification hereunder (the an "Indemnifying Party") after receiving written ------------------ may be obligated under this Agreement to provide indemnification, such Indemnified Party shall give such Indemnifying Party prompt notice thereof; provided, however, that the failure 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 Indemnified Party to give such claim for indemnification, describing the claim, the amount thereof (if known and quantifiable), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party notice shall not relieve the any Indemnifying Party of its or his obligations hereunder under this Article X, except to the extent that such Indemnifying Party is actually materially prejudiced by such failure to give notice. Such notice shall have prejudiced describe the claim in reasonable detail, and, if practicable, shall indicate the estimated amount of the Indemnifiable Loss that has been or may be sustained by such Indemnified Party.
(b) An Indemnifying Party. In that regard, if any actionat such Indemnifying Party's own expense and through counsel reasonably chosen by such Indemnifying Party, lawsuit, proceeding, investigation or other claim shall be brought or asserted by may elect to defend any third party whichclaim; and if it so elects, it shall, within twenty (20) Business Days after receiving notice of such third party claim (or sooner, if adversely determinedthe nature of such third party claim so requires), would entitle notify the Indemnified Party of its intent to indemnity pursuant to this Section 8.01do so, the and such Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate cooperate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise third party claim. After notice from an Indemnifying Party to the an Indemnified Party's claim for indemnification at Party of its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right election to assume control the defense of a third party claim, such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 have the right be liable 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to under this Article X for any legal or injure the other expenses subsequently incurred by such Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control in connection with the defense and elects to do sothereof; provided, the however, that such Indemnified Party shall have the right to employ one counsel separate from (and any necessary local counsel) to represent such Indemnified Party and all other Persons entitled to indemnification in respect of such claim hereunder (which counsel employed by shall be reasonably acceptable to the Indemnifying Party in any such action and to participate Party) if, in the defense thereof, but the fees and expenses opinion of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by reasonably acceptable to the Indemnifying Party in writingParty, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between such Indemnified Party and such Indemnifying Party exists in respect of such claim, and in that event (i) the reasonable fees and expenses of one such separate counsel (and any necessary local counsel) for all Indemnified Parties shall be paid by such Indemnifying Party and (ii) each of such Indemnifying Party and such Indemnified Party shall have the right to direct its own defense in respect of such claim. If any Indemnifying Party elects not to defend against a third party claim, or fails to timely notify an Indemnified Party of its election, such Indemnified Party may defend, compromise and settle such third party claim; provided, however, that no such Indemnified Party may, without the prior written consent of the Indemnifying Party and (which consent shall not be unreasonably withheld, conditioned or delayed), settle or compromise any third party claim or consent to the Indemnified Partyentry of any Judgment. If the The Indemnifying Party shall control the defense of may defend, compromise and settle any third party claim on such claimterms as it deems appropriate; provided, the however, that no Indemnifying Party shall obtain may, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld) before entering into , conditioned or delayed), settle or compromise any settlement of a third party claim or ceasing consent to defend such claim, if pursuant the entry of any Judgment which does not include as an unconditional term thereof the delivery by the claimant or plaintiff 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 of a written unconditional release the Indemnified Party from all liabilities and obligations with liability in respect to of such third party claim, without prejudice.
Appears in 1 contract
Samples: Stock Purchase and Merger Agreement (American Skiing Co /Me)
Defense of Claims. If a party hereto seeks indemnification under ----------------- this Section 8.0111.2, such party (the "Indemnified Party") shall give written ------------ ----------------- notice as soon as reasonably practicable to the other party (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 and circumstances giving rise to such claim for indemnification, describing the claim, the amount thereof (if known and quantifiable), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party shall not relieve 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 suit, action, lawsuitclaim, proceeding, investigation liability or other claim obligation (a "Proceeding") shall be ---------- brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Party to indemnity pursuant to this Section 8.0111.2, the Indemnified Party shall ------------ promptly within 30 days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall be entitled to participate in have prejudiced the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such action, lawsuit, proceeding, investigation Proceeding or other claim giving rise permit its predecessors (a "Permitted Designee") to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of assume ------------------ such defense if the Indemnifying Party is required to permit such Permitted Designee to assume and control such defense pursuant to any agreement it has made with reputable counsel reasonably acceptable to the Indemnified Party; such Permitted Designee (provided that, as a condition precedent to in either case, the Indemnifying -------- Party's right to assume control of such defenseParty and, it must first:
(i) enter into an agreement if applicable, its Permitted Designee shall consult with the Indemnified Party (in form with respect thereto and substance keep the Indemnified Party fully apprised of such defense), including the employment of counsel reasonably satisfactory to the Indemnified Party) Party and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Party to full indemnity pursuant to Section 11.2, the Indemnified Party may elect to participate in a joint defense of such Proceeding (a "Joint Defense Proceeding") ------------------------ for which the expenses of such joint defense will be shared by such parties in proportion to each party's liability and the employment of counsel shall be reasonably satisfactory to both parties; provided further that if the participation of such Indemnified Party would void any indemnity to which any Indemnifying Party may be entitled to receive from any third party, upon receipt of an unconditional written undertaking from the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to compensate the Indemnified Party for any and all Losses relating in connection with such Proceeding, the Indemnifying Party may elect to such claim; and
(ii) furnish exclude the Indemnified Party with reasonable evidence that the Indemnifying Party is and will be able to satisfy any from participation in such liability; and provided further that the Indemnifying Party shall not have the right to -------- ------- assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party, if the claim which the Indemnifying Party seeks to assume control (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defendProceeding. If the Indemnifying Party is permitted elects to assume and control the defense of a Proceeding (either directly or through its Permitted Designee), it will provide notice thereof within 30 days after the Indemnified Party has given notice of the matter and elects to do soif such Proceeding is not a Joint Defense Proceeding, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party or its Permitted Designee, as the case may be, in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless unless
(ai) the employment thereof has been specifically authorized by the Indemnifying Party or its Permitted Designee, as the case may be, in writing, writing or (bii) the Indemnified Indemnifying Party or its Permitted Designee, as the case may be, has been advised by legal counsel failed to assume the defense and employ counsel. The Indemnifying Party shall not be liable for any settlement of any Proceeding, the defense of which it (either directly or through its Permitted Designee) has elected to assume, which settlement is effected without the written consent of the Indemnifying Party; provided that a reasonable likelihood exists no settlement of a conflict Joint Defense Proceeding may be effected without the written consent of interest between both the Indemnifying Party and the Indemnified Party. If there shall be a settlement to which the Indemnifying Party shall control consents or a final judgment for the plaintiff in any Proceeding, the defense of any such claimwhich the Indemnifying Party has elected to assume, the Indemnifying Party shall obtain the prior written consent of indemnify the Indemnified Party with respect to the settlement or judgment. If the Indemnifying Party (which shall not be unreasonably withheldeither directly or through its Permitted Designee) before entering into any settlement elects to assume and control the defense or in the event of a claim or ceasing to defend such claimJoint Defense Proceeding, 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 shall take all reasonable efforts necessary to assist the Indemnifying Party in such settlement does not expressly unconditionally release the Indemnified Party from all liabilities and obligations with respect to such claim, without prejudicedefense.
Appears in 1 contract
Defense of Claims. If Upon receipt by an Indemnitor of a party hereto seeks indemnification under ----------------- this Section 8.01Claim Notice, such party (Indemnitor may, if it shall have acknowledged its obligation to indemnify the "Indemnified Party") shall give written ------------ ----------------- notice to , assume and control the other party (administration and defense of 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 Claim described therein at the liability, obligation or facts giving rise to such claim for indemnification, describing the claim, the amount thereof (if known and quantifiable), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Indemnitor's own expense. The Indemnified Party shall have the right to approve the Indemnitor's selection of counsel with respect to any such Claim, such approval not relieve 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 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 to indemnity pursuant to this Section 8.01, withheld unreasonably; and the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 have the right to -------- ------- assume control of employ its own counsel in any such defense and shall pay case, except that the fees and expenses of such counsel retained shall be for the account of and shall be paid by the such Indemnified Party; PROVIDED HOWEVER, if that the claim which the Indemnifying Party seeks to assume control (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which Indemnitor and the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure shall jointly and in good faith, with the Indemnified Party's reputation or future business prospectscooperation of their respective counsel, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects of any Claim, notwithstanding the giving of such written acknowledgement by the Indemnitor, if (i) the Indemnified Party shall have been advised by counsel that there are one or more legal or equitable defenses available to do soit which are different from or in addition to those available to the Indemnitor and, in the reasonable opinion of the Indemnified Party, counsel for the Indemnitor could not adequately represent the interests of the Indemnified Party because such interests could be in conflict with those of the Indemnitor, (ii) such matter involved amounts likely to exceed the Indemnity Threshold or remaining indemnification obligations of the Indemnitor or (iii) such action or proceeding is reasonably likely to have a material effect on the then current financial condition, results of operations or prospects of the Indemnified Party beyond any indemnification obligations of the Indemnitor. Further, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action assume and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any Claim if the Indemnitor shall not have assumed the defense of such claimClaim in a timely fashion, not to exceed 30 days from the Indemnifying Party shall obtain date of receipt by the prior written consent Indemnitor of the Indemnified Party (which shall not be unreasonably withheld) before entering into any settlement of a claim or ceasing to defend such claim, if pursuant to or as a result of such settlement or cessation, 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 obligations with respect to such claim, without prejudiceClaim Notice.
Appears in 1 contract
Defense of Claims. (a) If a party hereto seeks any Indemnitee receives notice of the assertion or commencement of any Third Party Claim against such Indemnitee with respect to which an Indemnifying Party is obligated to provide indemnification under ----------------- this Section 8.01Agreement, the Indemnitee will give such party (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 "Indemnified Party") shall give 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 will have the right to participate in or, by giving written notice to the other party (Indemnitee, to assume, the "defense of any Third Party Claim at such Indemnifying Party") after receiving written ------------------ notice of any action, lawsuit, proceeding, investigation or other claim against it 's own expense and by such Indemnifying Party's own counsel (if by a third party) or discovering reasonably satisfactory to the liability, obligation or facts giving rise to such claim for indemnification, describing the claim, the amount thereof (if known and quantifiableIndemnitee), and the basis thereof; provided that the -------- failure Indemnitee will cooperate in good faith in such defense.
(b) If, within 20 calendar days after giving notice of a Third Party Claim to so notify an Indemnifying Party pursuant to SECTION 5.4(A), an Indemnitee receives written notice from the Indemnifying Party shall not relieve that the Indemnifying Party has elected to assume the defense of its or his obligations hereunder except to such Third Party Claim as provided in the extent such failure shall have prejudiced the Indemnifying Party. In that regardlast sentence of SECTION 5.4(A), if any 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of will not be liable for any legal expenses subsequently incurred by the same Indemnitee in writingconnection with the defense thereof; provided, specifying in detail however, that if the basis of Indemnifying Party fails to take reasonable steps necessary to defend diligently such claim and Third Party Claim within ten calendar days after receiving written notice from the facts pertaining thereto 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 will be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible liable for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 have the right to -------- ------- assume control of such defense and shall pay the fees and costs or expenses of counsel retained by the Indemnified Party, if the claim which the Indemnifying Party seeks to assume control (A) seeks non-monetary relief, (B) involves criminal paid or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defendincurred in connection therewith. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall obtain Without the prior written consent of the Indemnified Indemnitee, the Indemnifying Party (which shall will not be unreasonably withheld) before entering 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 calendar 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 Party as to such Third Party Claim will not exceed 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") 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 Indemnitee becomes aware of such Direct Claim. 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 ceasing may be sustained by the Indemnitee. The Indemnifying Party will have a period of 30 calendar days within which to defend respond in writing to such Direct Claim. If the Indemnifying Party does not so respond within such 30 calendar day period, the Indemnifying Party will be deemed to have rejected such claim, if pursuant 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 Agreement.
(d) A failure to give timely notice or to include any specified information in any notice as provided in SECTIONS 5.4(A), 5.4(B) or 5.4(C) will not affect the rights or obligations of any party hereunder except and only to the extent that, as a result of such failure, any party which was entitled to receive such notice was deprived of its right to recover any payment under its applicable insurance coverage or was otherwise prejudiced as a result of such failure.
(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 cessationotherwise under or pursuant to any insurance coverage, injunction or pursuant to any claim, recovery, settlement, rebate or other equitable relief 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 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 Person 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 said Indemnity Payment will be imposed subrogated and subordinated in right of payment to the Indemnitee's rights against such third Person. Without limiting the Indemnified generality or effect of any other provision hereof, each such Indemnitee and Indemnifying Party or if such settlement does not expressly unconditionally release will duly execute upon request all instruments reasonably necessary to evidence and perfect the Indemnified Party from all liabilities above-described subrogation and obligations with respect to such claim, without prejudicesubordination rights.
Appears in 1 contract
Defense of Claims. If a party hereto seeks indemnification under ----------------- this Section 8.01, such party (the "Indemnified Party") shall give written ------------ ----------------- notice to the other party (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 (if known and quantifiable), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party shall not relieve 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 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party The Company shall be entitled to participate in the defense of any Claim relating to an Indemnifiable Event or to assume the defense thereof, with counsel reasonably satisfactory to Indemnified Party; provided that if Indemnified Party believes, after consultation with counsel selected by Indemnified Party, that (i) the use of counsel chosen by the Company to represent Indemnified Party would present such actioncounsel with an actual or potential conflict of interest, lawsuit, proceeding, investigation (ii) the named parties in any such Claim (including any impleaded parties) include both the Company and Indemnified Party and Indemnified Party concludes that there may be one or other claim giving rise more legal defenses available to him or her that are different from or in addition to those available to the Company, or (iii) any such representation by such counsel would be precluded under the applicable standards of professional conduct then prevailing, then Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) Party shall be entitled to appoint lead retain separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of such defense with reputable counsel reasonably acceptable to any particular Claim) at the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 Company’s expense. The Company shall not have the waive any privilege or right available 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and Claim without Indemnified Party’s prior written consent. The Company shall not be liable to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party under this Agreement for any amounts paid in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense settlement of any such claimClaim relating to an Indemnifiable Event effected without the Company’s prior written consent. The Company shall not, the Indemnifying Party shall obtain without the prior written consent of the Indemnified Party (which shall not be unreasonably withheld) before entering into Party, effect any settlement of any Claim relating to an Indemnifiable Event which Indemnified Party is or could have been a claim or ceasing to defend such claim, if pursuant to or as a result of party unless such settlement or cessation, injunction or other equitable relief will be imposed against solely involves the Indemnified Party or if such settlement does not expressly unconditionally payment of money and includes a complete and unconditional release the of Indemnified Party from all liabilities liability on all claims that are the subject matter of such Claim. Neither the Company nor Indemnified Party shall unreasonably withhold its or his or her consent to any proposed settlement; provided that Indemnified Party may withhold consent to any settlement that does not provide a complete and obligations unconditional release of Indemnified Party. If Indemnified Party is the subject of or is implicated in any way during any proceeding, the Company will share with respect Indemnified Party any information it has turned over to such claim, without prejudiceany third parties concerning the proceeding.
Appears in 1 contract
Defense of Claims. If Upon receipt by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third party hereto seeks against the Indemnified Party, and acknowledgment by the Indemnifying Party (whether after resolution of a dispute or otherwise) of the Indemnified Party's right to indemnification under ----------------- this Section 8.01, such party (the "Indemnified Party") shall give written ------------ ----------------- notice to the other party (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 Article VI with respect to such claim for indemnification, describing the claim, the amount thereof (if known and quantifiable), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party shall not relieve assume control of the defense of such claim with counsel selected by the Indemnifying Party of in its or his obligations hereunder except to the extent such failure shall have prejudiced the Indemnifying Party. In that regard, if any 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 to indemnity pursuant to this Section 8.01, sole discretion and the Indemnified Party shall ------------ promptly notify cooperate with the Indemnifying Party at the expense of the same Indemnifying Party to the extent reasonably requested by the Indemnifying Party in writingdefense or prosecution thereof and at the expense of the Indemnifying Party shall furnish such records, specifying information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by Indemnifying Party in detail the basis of such claim and the facts pertaining thereto and connection therewith. Such expenses to be borne by the Indemnifying Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 have the right to -------- ------- assume control of such defense and shall pay the fees costs and expenses of counsel retained by the Indemnified Party, if the claim which the Indemnifying Party seeks to assume control (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defendin so cooperating. If the Indemnifying Party is permitted shall acknowledge the Indemnified Party's right to indemnification and elect to assume and control the defense and elects to do soof such claim, the Indemnified Party shall have the right to employ its own counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereofcase, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by Party. If the Indemnifying Party in writinghas assumed the defense of any claim against the Indemnified Party, or (b) the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement required the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party and shall not settle such claim without the prior written consent of the Indemnified Party. If the Indemnifying Party shall control does not assume the defense of any such claima third party claim and disputes the Indemnified Party's right to Confidential Materials omitted and filed separately with the Securities and Exchange Commission. Asterisks denote omissions. indemnification, the Indemnifying Party shall obtain have the prior written consent right to participate in the defense of such claim through counsel of its choice, at the Indemnifying Party's expense, and the Indemnified Party (which shall not be unreasonably withheld) before entering into any settlement of a have control over the litigation and authority to reasonably resolve such claim or ceasing subject 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 this Article VI. When the Indemnifying Party has assumed the defense and the Indemnifying Party and the Indemnified Party or if such settlement does not expressly unconditionally release have conflicting interests with respect to the matter, then the Indemnified Party from all liabilities and obligations with respect shall at the Indemnifying Party's expense be entitled to such claim, without prejudiceindependent legal counsel of its choice.
Appears in 1 contract
Samples: Stock Purchase Agreement (International Telecommunication Data Systems Inc)
Defense of Claims. If a claim for Damages is to be made by a ----------------- party hereto seeks entitled to indemnification under ----------------- this Section 8.01, such party hereunder (the "Indemnified Party") ), the ----------------- Indemnified Party shall give written ------------ ----------------- notice to the other party against whom a claim is to be made (the "Indemnifying Party") as soon as practical after receiving written the Indemnified ------------------ notice Party becomes aware of any actionfact, lawsuit, proceeding, investigation condition or other claim against it (if by a third party) or discovering the liability, obligation or facts giving event which may give rise to such claim Damages for indemnificationwhich indemnification may be sought under this Section 9.6. If any lawsuit or enforcement action is filed against any party entitled to the benefit of indemnity hereunder, describing written notice thereof shall be given to the claimIndemnifying Party as promptly as practicable (and in any event within fifteen (15) days after the service of the citation or summons); provided, the amount thereof (if known and quantifiable), and the basis thereof; provided that the -------- failure of any Indemnified Party to so notify the Indemnifying Party give timely notice shall not relieve the Indemnifying Party of its or his obligations affect rights to indemnification hereunder except to the extent such failure shall have prejudiced that the Indemnifying PartyParty is prejudiced by such failure. In that regardAfter such notice, if any action, lawsuit, proceeding, investigation or other claim the Indemnifying Party shall be brought or asserted by any third party which, if adversely determined, would entitle acknowledge in writing to the Indemnified Party to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and that the Indemnifying Party shall be entitled obligated under the terms of its indemnity hereunder in connection with such lawsuit or action, then the Indemnifying Party shall be entitled, if it so elects, to participate in take control of the defense and investigation of such lawsuit or action and to employ and engage attorneys of its own choice to handle and defend the same, at the Indemnifying Party's cost, risk and expense and after such time the Indemnifying Party will not, subject to Section 9.7 hereof, as long as it diligently conducts such defense, be liable to the Indemnified Party under this Section 9.6 for any fees of other counsel or any other expenses with respect to the defense of such actionproceedings, lawsuit, in each case subsequently incurred by the Indemnified Party in connection with the defense of such proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expensethan reasonable costs of investigation, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to that the Indemnifying -------- Party's right to assume control of such defense, it must firstParty and its counsel shall:
(i) proceed with diligence and in good faith with respect thereto; and
(ii) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible (with no reservation of any rights other than the right to be subrogated to the rights of the Indemnified Party), for all Losses Damages relating to such claims proceeding and that it will unconditionally guarantees the payment and performance of any liability or obligation which may arise with respect to such proceeding or the facts giving rise to such claim for indemnification; and
(iii) provide full indemnification reasonable assurance to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheld) before entering into any settlement of a claim or ceasing its financial capacity to defend such claim, if pursuant to or as a result of proceeding and satisfy 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 obligations with respect to such claim, without prejudiceliability.
Appears in 1 contract
Defense of Claims. (a) If a Purchaser Indemnified Party or Parent Indemnified Party, as the case may be (an “Indemnified Party”), shall receive notice of the assertion of any claim with respect to which a party hereto seeks required to provide indemnification hereunder (an “Indemnifying Party”) may be obligated under ----------------- this Section 8.01Agreement to provide indemnification, such party (the "Indemnified Party") Party shall give written ------------ ----------------- such Indemnifying Party prompt notice to thereof; provided, however, that the other party (the "Indemnifying Party") after receiving written ------------------ notice failure 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 Indemnified Party to give such claim for indemnification, describing the claim, the amount thereof (if known and quantifiable), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party notice shall not relieve the any Indemnifying Party of its or his obligations hereunder under this Article 11, except to the extent that such Indemnifying Party is actually prejudiced by such failure to give notice. Such notice shall have prejudiced describe the claim in reasonable detail, and, if practicable, shall indicate the estimated amount of the Indemnifiable Loss that has been or may be sustained by such Indemnified Party.
(b) An Indemnifying Party. In that regard, if any actionat such Indemnifying Party’s own expense and through counsel reasonably chosen by such Indemnifying Party, lawsuit, proceeding, investigation or other claim shall be brought or asserted by may elect to defend any third party whichclaim; and if it so elects, it shall, within twenty (20) Business Days after receiving notice of such third party claim (or sooner, if adversely determinedthe nature of such third party claim so requires), would entitle notify the Indemnified Party of its intent to indemnity pursuant to this Section 8.01do so, the and such Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate cooperate in the defense of such actionthird party claim. Such Indemnifying Party shall pay such Indemnified Party’s reasonable out-of-pocket expenses incurred in connection with such cooperation. After notice from an Indemnifying Party to an Indemnified Party of its election to assume the defense of a third party claim, lawsuit, proceeding, investigation such Indemnifying Party shall not be liable to such Indemnified Party under this Article 11 for any legal or other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof; provided, however, that such Indemnified Party shall have the right to employ one counsel (and any necessary local counsel) to represent such Indemnified Party and all other persons entitled to indemnification in respect of such claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option hereunder (subject to the limitations set forth below) which counsel shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnifying Party in its reasonable judgment) if, in such Indemnified Party; provided that’s reasonable judgment, as a condition precedent to the conflict of interest between such Indemnified Party and such Indemnifying -------- Party's right to assume control Party exists in respect of such defenseclaim, it must first:
and in that event (i) enter into an agreement with the reasonable fees and expenses of one such separate counsel (and any necessary local counsel) for all Indemnified Parties shall be paid by such Indemnifying Party and (ii) each of such Indemnifying Party and such Indemnified Party shall have the right to direct its own defense in respect of such claim. If any Indemnifying Party elects not to defend against a third party claim, or fails to notify an Indemnified Party of its election within such twenty (20) Business day period, such Indemnified Party may defend, compromise and settle such third party claim; provided, however, that no such Indemnified Party may settle or compromise any third party claim as to which the Indemnifying Party has acknowledged in writing (in form and substance reasonably satisfactory to the Indemnified Party) pursuant its indemnification obligations hereunder, or consent to which the entry of any Judgment with respect to such a third party claim, without the prior written consent of the Indemnifying Party agrees to (which consent shall not be fully responsible for all Losses relating to unreasonably withheld). The Indemnifying Party may defend, compromise and settle any third party claim on such claims and terms as it deems appropriate, provided, however, that it will provide full indemnification no Indemnifying Party may settle or compromise any third party claim or consent to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense entry of any such claimJudgment, the Indemnifying Party shall obtain without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld) before entering into any settlement of a claim or ceasing to defend such claim, if pursuant to or as a result of such settlement or cessation, 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 obligations with respect to such claim, without prejudice).
Appears in 1 contract
Defense of Claims. (a) If a party hereto seeks indemnification under ----------------- this Section 8.01, such party (any Indemnitee receives notice of the "Indemnified Party") shall give written ------------ ----------------- notice to assertion of any claim or cause of action or of the other party (the "Indemnifying Party") after receiving written ------------------ notice commencement of any action, lawsuitproceeding or investigation by any Person (including any Governmental Authority) who is not a party to this Agreement or an Affiliate of such a party (a "Third Party Claim") against such Indemnitee, proceeding, investigation or other claim against it (if by a third party) or discovering the liability, obligation or facts giving rise with respect to such claim for indemnification, describing the claimwhich an Indemnifying Party is obligated to provide indemnification under this Agreement, the amount thereof Indemnitee will give such Indemnifying Party 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 will describe the Third Party Claim in reasonable detail, 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 assume the defense of any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (if known and quantifiablereasonably satisfactory to the Indemnitee), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party shall not relieve 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 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same Indemnitee will cooperate in writing, specifying good faith in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense; provided, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) furnish the Indemnified Party with reasonable evidence that the Indemnifying Party is and will be able to satisfy any such liability; and provided further however, that the Indemnifying Party shall not have the right to -------- ------- assume control the defense of any Third Party Claim if the named parties to any such defense action or proceeding (including any impleaded parties) include both the Indemnitee and the Indemnifying Party and the Indemnitee shall pay have been advised by counsel that there are one or more legal or equitable defenses available to the fees Indemnitee which are different from or additional to those available to the Indemnifying Party so as to result in a potential conflict of interest between the Indemnitee and expenses of counsel retained by the Indemnified Indemnifying Party; then, if the claim which the Indemnifying Party seeks to assume control (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by Indemnitee notifies the Indemnifying Party in any such action and writing that the Indemnitee elects to participate in the defense thereof, but the fees and expenses of such employ separate counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall not have the right to assume the defense of the Indemnitee, it being understood, however, that the Indemnifying Party shall not, in connection with any one such action or proceeding in separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to local counsel if appropriate) at any time for all Indemnitees. Notwithstanding anything in this Section 8.3, if Seller is an Indemnifying Party with respect to a Third Party Claim relating to, resulting from or arising out of (i) Taxes of Seller incurred on or before the Closing Date, or (ii) an Indemnifiable Loss under Section 8.2(a)(iii) (collectively, "Seller's Third Party Claims"), then Seller, by giving written notice to the Indemnitee, shall at all times have the right to assume the defense of such Third Party Claim. In the event the Indemnifying Party shall not have assumed the defense and the Indemnitee is conducting the defense, the Indemnifying Party shall be entitled to monitor the defense by the Indemnitee, to consult with the Indemnitee with respect to such claim and to be kept fully informed by the Indemnitee of such Third Party Claim, which shall include, without limitation, the right to review and obtain copies of all pleadings, motions and correspondence, and other non-privileged documentation and information in connection with such Third Party Claim, in each case as the Indemnifying Party may reasonably request. The Indemnifying Party and the Indemnitee shall make available to each other and their attorneys and accountants as reasonably requested all books and records relating to Third Party Claims, and the parties hereto agree to render to each other such assistance as they may reasonably require to ensure the proper and adequate defense of any Third Party Claim. The right to assume the defense of any Third Party Claim shall include, without limitation, the right to assert, for the benefit of the Indemnitee, cross-claims and counterclaims in connection with such Third Party Claim which are directly related to such Third Party Claim.
(b) If, within 20 calendar days after giving notice of a Third Party Claim to an Indemnifying Party pursuant to Section 8.3(a), an Indemnitee receives written notice from the Indemnifying Party that the Indemnifying Party has assumed the defense of such Third Party Claim as provided in Section 8.3(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 20 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 costs or expenses paid or incurred by the Indemnitee in connection therewith.
(c) Without the prior written consent of the Indemnified Party (Indemnitee, which consent shall not unreasonably be unreasonably withheld) before entering , the Indemnifying Party will not enter into any settlement of any Third Party Claim which (i) does not include as an unconditional term thereof the release by the claimant or the plaintiff of the Indemnitee and its Affiliates from all liability in respect of such Third Party Claim; (ii) could reasonably be expected to lead to liability or create any financial or other obligation on the part of the Indemnitee or any Affiliate thereof for which the Indemnitee or any Affiliate thereof is not entitled to indemnification hereunder; (iii) would require the Indemnitee or any Affiliate thereof to change in any material respect the way it conducts business; or (iv) would require any admission of wrongdoing by the Indemnitee or any Affiliate thereof. If a claim firm offer is made to settle a Third Party Claim which could not be expected to lead to liability or ceasing the creation of a financial or other obligation on the part of the Indemnitee or any Affiliate thereof for which the Indemnitee or any Affiliate thereof is not entitled to indemnification hereunder or to require the Indemnitee or any Affiliate thereof to change in any material respect the way it does business or an admission of wrongdoing by the Indemnitee or any Affiliate thereof, and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party will give written notice to Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer within 20 calendar days after its receipt of such notice, the Indemnitee may, at its sole cost and expense, continue to contest or defend such Third Party Claim and, in such event, the maximum liability of the Indemnifying Party as to such Third Party Claim will not exceed the amount of such settlement offer.
(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 such Indemnitee by giving the Indemnifying Party reasonably prompt written notice thereof after learning of such Direct Claim and the Indemnifying Party will have a period of 30 calendar days within which to respond in writing to such Direct Claim. If the Indemnifying Party does not so respond within such 30 calendar day period, the Indemnifying Party will be deemed to have rejected such claim. In such event, if pursuant or in the event the Indemnifying Party sends notice to the Indemnitee objecting to the matters set forth in such notice of indemnification, each of the parties shall be free to pursue such remedies as may be available to it.
(e) A failure to give timely notice as provided in this Section 8.3 or in Section 8.4 will not affect the rights or obligations of any party hereunder except and only to the extent that, as a result of such failure, any party which was entitled to receive such notice was deprived of its right to recover any payment under its applicable insurance coverage or was otherwise actually damaged as a result of such failure.
(f) If the amount of any Indemnifiable Loss, at any time subsequent to the making of an Indemnity Payment, is reduced by recovery, settlement or cessationotherwise under or pursuant to any insurance coverage, injunction 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 other equitable relief offsets incurred in connection therewith, will promptly be imposed 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 that is not an Affiliate of the Indemnified Party Indemnitee in respect of the Indemnifiable Loss to which the Indemnity Payment relates. Without limiting the generality or if effect of any other provision hereof, each such settlement does not expressly unconditionally release Indemnitee will duly execute upon request all instruments reasonably necessary to evidence and perfect the Indemnified Party from all liabilities and obligations with respect to such claim, without prejudiceabove-described subrogation rights.
Appears in 1 contract
Samples: Asset Purchase Agreement (Chicago Bridge & Iron Co N V)
Defense of Claims. (a) If any 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 hereto seeks indemnification under ----------------- to this Section 8.01, such Agreement or any Affiliate of a party to this Agreement (the a "Indemnified PartyThird 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, 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 give 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 other party (Indemnitee, to elect to assume the "defense of any Third Party Claim at such Indemnifying Party") after receiving written ------------------ notice of any action, lawsuit, proceeding, investigation or other claim against it (if 's own expense and by a third party) or discovering the liability, obligation or facts giving rise to such claim for indemnification, describing the claim, the amount thereof (if known and quantifiable)Indemnifying Party's own counsel, and the basis thereof; provided that the -------- failure 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 so notify the Indemnifying Party shall not relieve 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 action, lawsuit, proceeding, investigation or other claim shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Third Party to indemnity pursuant to this Section 8.01Claim, the Indemnified Party shall ------------ promptly notify Indemnitee receives written notice from the Indemnifying Party of that such Indemnifying Party has elected to assume the same in writing, specifying in detail the basis defense of such claim and Third Party Claim as provided in the facts pertaining thereto last sentence of Section 9.02(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 shall will be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible liable for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defendthereof. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall obtain Without the prior written consent of the Indemnified Indemnitee, the Indemnifying Party (which shall will not be unreasonably withheld) before entering 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 claim firm offer is made to settle a Third Party Claim without leading to liability or ceasing the creation of a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to defend 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, if pursuant 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 Bank of America, 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 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 9.02(d) shall be construed to require any party hereto to obtain or maintain any insurance coverage.
(e) Subject to Section 9.01(a) and 9.01(b) hereof, a failure to give timely notice as provided in this Section 9.02 will not affect the rights or obligations of any party hereunder except if, and only to the extent that, as a result of such settlement or cessationfailure, injunction or other equitable relief will be imposed against the Indemnified Party or if party which was entitled to receive such settlement does not expressly unconditionally release the Indemnified Party from all liabilities and obligations with respect to notice was actually prejudiced as a result of such claim, without prejudicefailure.
Appears in 1 contract
Defense of Claims. If The obligations and liabilities of each party for Claims under Section 10.2 and 10.3 hereof will be subject to the following terms and conditions:
(a) The Indemnitee will give prompt notice of any Claim by a Person not a party hereto seeks indemnification under ----------------- to this Section 8.01, Agreement or an Affiliate of such party (the a "Indemnified PartyThird Person Claim") shall give written ------------ ----------------- notice to the other party Indemnifying Party and the Indemnifying Party will have the right to undertake the defense thereof by representatives chosen by it and shall keep the Indemnitee informed and shall consult with the Indemnitee in connection with such defense. The Indemnitee shall cooperate in such defense including providing such information related thereto as the Indemnifying Party reasonably requests.
(b) If the "Indemnifying Party") , within a reasonable time after notice of any such Third Person Claim, fails to defend, then the Indemnitee will have the right to undertake the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party, subject to the right of the Indemnifying Party to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof. If, within a reasonable time 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 Third Party Claim, the Indemnifying Party will not be liable for any costs and 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 such Third Party Claim within 20 calendar days after receiving written ------------------ notice of any action, lawsuit, proceeding, investigation or other claim against it (if by a third party) or discovering from the liability, obligation or facts giving rise Indemnitee that the Indemnitee believes the Indemnifying Party has failed to take such claim for indemnification, describing the claimsteps, the amount thereof (if known and quantifiable)Indemnitee may assume its own defense, and the basis thereof; provided that Indemnifying Party will be liable for all Damages paid or incurred in connection therewith.
(c) If a firm offer is made to settle a Third Party Claim without leading to liability or creating a financial or other obligation or Material Adverse Effect on the -------- failure part of the Indemnitee for which the Indemnitee is not entitled to so notify indemnification hereunder and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall not relieve give written notice to the Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer within 10 calendar 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 Party as to such Third Party Claim shall not exceed the amount of its such settlement offer, plus costs and expenses paid or his obligations hereunder except incurred by the Indemnitee through the end of such ten-day period. The Indemnifying Party will not, without the written consent of the Indemnitee settle or compromise any Third Party claim or consent to the extent entry of any judgment thereon which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability in respect of such failure shall Claim.
(d) Anything in Section 10.4(b) to the contrary notwithstanding, if the Indemnitee in its sole discretion determines that there is a reasonable probability that a Claim may adversely affect the Indemnitee other than as a result of money damages, then the Indemnitee will have prejudiced the right, upon notice to the Indemnifying Party. In that regard, if any actionat its own cost and expense, lawsuitto defend, proceedingcompromise or settle such Claim; provided, investigation or other claim (x) the Indemnitee shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Party to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify keep the Indemnifying Party informed and consult with the Indemnifying Party in connection therewith and (y) the Indemnitee shall not settle any such claim without the consent of the same Indemnifying Party, which consent shall not be unreasonably withheld.
(e) 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 reasonably prompt written notice thereof, and in writing, specifying in detail any event not later than 30 calendar days after the basis Indemnitee becomes aware of such claim and Direct Claim. If the facts pertaining thereto and Indemnifying Party does not so respond within such 30 calendar day period, the Indemnifying Party shall be entitled deemed to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any rejected such claim, in which event the Indemnifying Party Indemnitee shall obtain be free to pursue such remedies as may be available to the prior written consent of the Indemnified Party Indemnitee under this Article X.
(which f) A failure to give timely notice as provided in this Section 10.4 shall not be unreasonably withheld) before entering into affect the rights or obligations of any settlement of a claim or ceasing party hereunder except and only to defend such claimthe extent that, if pursuant to or as a result of such settlement failure, any party which was entitled to receive such notice was deprived of its right to recover any payment under its applicable insurance coverage or cessation, injunction or other equitable relief will be imposed against the Indemnified Party or if was otherwise directly and materially damaged as a result of such settlement does not expressly unconditionally release the Indemnified Party from all liabilities and obligations with respect to such claim, without prejudicefailure.
Appears in 1 contract
Defense of Claims. If All rights of a party hereto seeks Party to indemnification under ----------------- this Article IX shall be asserted and resolved as follows:
(a) Promptly after receipt by a Party entitled to indemnification under Section 8.01, such party 9.1 or Section 9.2 (the an "Indemnified Party") of notice of any pending or threatened claim, such Indemnified Party shall give written ------------ ----------------- notice to the other party Party or Parties to whom the Indemnified Party is entitled to look for indemnification (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 (if known and quantifiable), and the basis commencement thereof; provided that the -------- failure so to so notify the Indemnifying Party shall not relieve it of any liability that it may have to the Indemnifying Indemnified Party of its or his obligations hereunder hereunder, except to the extent such failure shall have prejudiced that the Indemnifying Party. Party demonstrates that it is actually prejudiced thereby.
(b) In that regard, if case any action, lawsuit, proceeding, investigation or other claim shall be brought or asserted by any third party which, if adversely determined, would entitle the against an Indemnified Party and it shall give notice to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writingcommencement thereof, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in therein and, if it so desires, to assume the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead thereof with counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which Party and, after notice from the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating of its election to such claim; and
(ii) furnish assume the Indemnified Party with reasonable evidence that the Indemnifying Party is and will be able to satisfy any such liability; and defense thereof, except as provided further that below the Indemnifying Party shall not have be liable to such Indemnified Party under this Article IX for any fees of other counsel or any other expenses, in each case subsequently incurred by such Indemnified Party in connection with the right to -------- ------- assume control defense thereof, other than reasonable costs of such defense and shall pay the fees and expenses of counsel retained by the Indemnified investigation. Notwithstanding an Indemnifying Party, if the claim which the Indemnifying Party seeks 's election to assume control (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do soof a claim, the Indemnified Party shall have the right to employ separate counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereofof such claim, but and the fees Indemnifying Party shall bear the reasonable fees, costs and expenses of such separate counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless if: (ai) the employment thereof has been specifically authorized use of counsel chosen by the Indemnifying Party in writing, or (b) to represent the Indemnified Party has been advised by legal would present such counsel that a reasonable likelihood exists of with a conflict of interest between interest, (ii) the actual or potential defendants in, or targets of, any such claim include both the Indemnifying Party and the Indemnified Party. If , and the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the Indemnifying Party (in which case the Indemnifying Party shall control not have the right to assume the defense of such claim on the Indemnified Party's behalf), (iii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the institution of such claim, or (iv) the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense. If an Indemnifying Party assumes the defense of a claim, no compromise or settlement thereof may be effected by the Indemnifying Party without the Indemnified Party's written consent unless (a) there is no finding or admission of any violation of law and no effect on any other claims that may be made against the Indemnified Party and (b) the sole relief provided is monetary damages that are to be paid in full by the Indemnifying Party.
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder which does not involve a claim being asserted by a third party, the Indemnified Party shall as promptly as is practical notify the Indemnifying Party of such claim, describing such claim, the amount thereof (if known) and the method of computation of the amount of the claim, all with reasonable particularity. The failure to give any such notice shall not relieve the Indemnifying Party shall obtain of its obligations hereunder except to the prior extent that such failure results in actual prejudice to the Indemnifying Party. Upon the giving of such written consent of notice as aforesaid, the Indemnified Party (which shall not be unreasonably withheld) before entering into any settlement have the right to commence legal proceedings for the enforcement of a claim their rights under Section 9.1, Section 9.2 or ceasing 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 obligations with respect to such claim, without prejudiceSection 9.3.
Appears in 1 contract
Defense of Claims. If any 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 hereto seeks Party to this Agreement or any Affiliate of a Party to this Agreement (a “Third Party Claim”) with respect to which indemnification under ----------------- this Section 8.01is to be sought from an Indemnifying Party, such party (the "Indemnified Party") following terms and provisions shall apply:
9.1.8.1 The Indemnitee shall give written ------------ ----------------- notice to the other party (the "Indemnifying Party") after receiving written ------------------ notice Party of any action, lawsuit, proceeding, investigation or other claim against it (if by a third party) or discovering the liability, obligation or facts giving Third Party Claim which might give rise to such a claim for indemnification, describing which notice shall state the claimnature 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 prejudiced by such delay and then only to the extent so prejudiced.
9.1.8.2 If any Third Party Claim is brought against an Indemnitee with respect to which the Indemnifying Party may have an obligation to indemnify, the amount thereof Third Party Claim shall be defended by the Indemnifying Party and such defense shall include all proceedings and appeals which counsel for the Indemnitee shall deem reasonably appropriate.
9.1.8.3 Notwithstanding the provisions of the previous subsection, until the Indemnifying Party shall have assumed the defense of any such Third Party Claim, the defense shall be handled by the Indemnitee. Furthermore, (i) if known the Indemnifying Party is a party to the action and quantifiablethe Indemnitee shall have reasonably concluded that there are likely to be defenses available to the Indemnitee that are different from or in addition to those available to the Indemnifying Party and in conflict with the interests of the Indemnifying Party; (ii) if the Indemnifying Party fails to defend and fulfill its indemnification obligation with respect to the Third Party Claims; or (iii) if the Third Party Claim involves a customer, competitor or a supplier of the Business and Xxxxx Xxxxxxxx Xxxxxxxx has either voluntarily terminated her employment with Buyer or has been terminated by Buyer for Cause (as such term is defined in the Xx. Xxxxxxxx Xxxxxxxx’x Employment Agreement referenced in Section 8.7 hereof), and the basis thereof; provided that the -------- failure to so notify then the Indemnifying Party shall not relieve be entitled to assume the Indemnifying defense of the Third Party of its or his obligations hereunder except to Claim and the extent such failure shall have prejudiced the Indemnifying Party. In that regard, if any action, lawsuit, proceeding, investigation or other claim defense shall be brought or asserted handled by any third party which, if adversely determined, would entitle the Indemnified Party to indemnity pursuant to this Section 8.01, Indemnitee. If the Indemnified Party shall ------------ promptly notify the Indemnifying Party defense of the same in writingThird Party Claim is handled by the Indemnitee under the provisions of this subsection, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate pay all legal and other expenses reasonably incurred by the Indemnitee in the defense of conducting such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to defense.
9.1.8.4 In any Third Party Claim defended by the Indemnifying -------- Party's right to assume control of such defense, it must first:
Party (i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party Indemnitee shall have the right to employ be represented by advisory counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereofaccountants, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless its own expense, (aii) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control keep the defense Indemnitee fully informed as to the status of any such claimThird Party Claim at all stages thereof, whether or not the Indemnitee is represented by its own counsel, (iii) the Indemnifying Party shall obtain make available to the Indemnitee, and its attorneys, accountants and other representatives, all books and records of the Indemnifying Party relating to such Third Party Claim and (iv) the parties shall render to each other such assistance as may be reasonably required in order to ensure the proper and adequate defense of the Third Party Claim.
9.1.8.5 In any Third Party Claim, the party defending the same shall not make any settlement of any claim without the prior written consent of the Indemnified Party (other party, which consent shall not be unreasonably withheld) before entering into any , delayed or conditioned. Without limiting the generality of the foregoing, it shall not be deemed unreasonable to withhold consent to a settlement of a claim or ceasing to defend such claim, if pursuant to or as a result of such settlement or cessation, injunction involving injunctive or other equitable relief against the Indemnitee or its assets, employees or business, or relief which the Indemnitee reasonably believes could establish a custom or precedent which will be imposed against adverse to the Indemnified Party or if such settlement does not expressly unconditionally release the Indemnified Party from all liabilities and obligations with respect to such claim, without prejudicebest interests of its continuing business.
Appears in 1 contract
Defense of Claims. If a claim for Losses (a "Claim") ----------------- is to be made by an Indemnified Party, such Indemnified Party shall give written notice (a "Claim Notice") to the indemnifying party hereto seeks 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 Section 8.019. If any lawsuit or enforcement action is filed against any Indemnified Party hereunder, such party notice thereof (the a "Indemnified PartyThird Party Notice") shall give written ------------ ----------------- notice be given to the other ------------------ indemnifying party as promptly as practicable (and in any event within five (5) calendar days after the "Indemnifying Party") after receiving written ------------------ notice service of the citation or summons). The failure 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 indemnified party to such claim for indemnification, describing the claim, the amount thereof (if known and quantifiable), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party give timely notice hereunder shall not relieve the Indemnifying Party of its or his obligations hereunder affect rights to indemnification hereunder, except to the extent that the indemnifying party demonstrates actual damage caused by such failure shall have prejudiced the Indemnifying Partyfailure. In that regardAfter receipt of a Third Party Notice, if any the indemnifying party shall acknowledge in writing to the indemnified party that the indemnifying party shall be obligated under the terms of its indemnity hereunder in connection with such lawsuit or action, lawsuit, proceeding, investigation or other claim then the indemnifying party shall be brought or asserted by any third party whichentitled, if adversely determinedit so elects, would entitle the Indemnified Party to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage attorneys approved by the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees such approval not to be fully responsible for all Losses relating unreasonably withheld) to handle and defend the same, at the indemnifying party's cost, risk and expense unless the named parties to such claims action or proceeding include both the indemnifying party and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised in writing by legal counsel that a reasonable likelihood exists of a conflict of interest between there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party indemnifying party, and the Indemnified Party. If the Indemnifying Party shall control the defense of any (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the Indemnifying Party shall obtain the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld. The Indemnified Party shall cooperate in all reasonable respects with the indemnifying party and such attorneys in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom; and the Indemnified Party may, at its own cost, participate in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom and appoint its own counsel therefor, at its own cost. The parties shall also cooperate with each other in any notifications to insurers. If the indemnifying party fails to assume the defense of such claim within fifteen (15) calendar days after receipt of the Third Party Notice, the Indemnified Party against which such claim has been asserted will (upon delivering notice to such effect to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim and the indemnifying party shall have the right to participate therein at its own cost; provided, however, that such claim shall not be compromised or -------- ------- settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld) before entering into any settlement of a claim or ceasing to defend such claim, if pursuant to or as a result of such settlement or cessation, injunction or other equitable relief will be imposed against . In the event the Indemnified Party or if such settlement does not expressly unconditionally release assumes the defense of the claim, the Indemnified Party from will keep the indemnifying party reasonably informed of the progress of any such defense, compromise or settlement. Notwithstanding the foregoing, the indemnifying party shall not be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for any and all liabilities and obligations Indemnified Parties (which firm shall be designated in writing by such Indemnified Party or Parties) in connection with respect to any one such claim, without prejudiceaction or proceeding arising out of the same general allegations or circumstances.
Appears in 1 contract
Samples: Stock Purchase Agreement (Prometheus Homebuilders Funding Corp)
Defense of Claims. If a party hereto seeks indemnification under ----------------- this Section 8.01, such party claim for Damages (the a "Indemnified PartyClaim") shall is to be made by an Indemnified Party against an Indemnifying Party, the Indemnified Party shall, subject to Section 10.1, give written ------------ ----------------- notice (a "Claim Notice") to the other party (Indemnifying Party as soon as practicable after the "Indemnifying Party") after receiving written ------------------ notice Indemnified Party becomes aware of any actionfact, lawsuit, proceeding, investigation condition or other claim against it (if by a third party) or discovering the liability, obligation or facts giving event which may give rise to Damages for which indemnification may be sought under Section 10.2. Such Claim Notice shall set forth (a) the specific representation, warranty or covenant alleged to have been breached, (b) the nature and amount of the Claim asserted, together with sufficient facts relating thereto so that the Indemnifying Party may reasonably evaluate such claim for Claim and (c) a calculation or good faith estimate, if such can be reasonably calculated, of the aggregate Damages to which the claimant believes it is entitled in connection with the Claim. If any lawsuit or enforcement action is filed against any party entitled to the benefit of indemnity hereunder, written notice thereof shall be given to the Indemnifying Party as promptly as practicable (and in any event within fifteen (15) days after the service of the citation or summons). The failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification, describing except to the claim, the amount thereof (if known and quantifiable), and the basis thereof; provided extent that the -------- failure to so notify Indemnifying Party is actually prejudiced by such failure. After such notice, if the Indemnifying Party shall not relieve the Indemnifying Party of its or his obligations hereunder except acknowledge in writing to the extent such failure shall have prejudiced the Indemnifying Party. In that regard, if any 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and that the Indemnifying Party shall be entitled to participate obligated under the terms of its indemnity hereunder in the defense of connection with such lawsuit or action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 then the Indemnifying Party shall not have the right be entitled, if it so elects, (i) to -------- ------- assume take control of such the defense and shall pay investigation of such lawsuit or action, (ii) to employ and engage attorneys of its own choice to handle and defend the fees same, at the Indemnifying Party's cost, risk and expenses of counsel retained by expense unless the Indemnified Party, if the claim which named parties to such action or proceeding include both the Indemnifying Party seeks to assume control (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which and the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised in writing by legal counsel that a reasonable likelihood exists of a conflict of interest between there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party and (iii) to compromise or settle such Claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld or delayed. If the Indemnifying Party shall control fails to assume the defense of such Claim within fifteen (15) days after receipt of the Claim Notice, the Indemnified Party against which such Claim has been asserted will (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party's reasonable cost and expense, the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party; provided, however, that such Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. No Indemnifying Party shall be required to consent to the entry of any judgment or to enter into any settlement that does not include as an unconditional term the giving by the claimant or plaintiff of a release from all Liability in respect of such Claim. In the event the Indemnified Party assumes the defense of the Claim, the Indemnified Party will keep the Indemnifying Party reasonably informed of the progress of any such claimdefense, compromise or settlement. Subject to Section 10.5, the Indemnifying Party shall obtain be liable for any settlement of any action effected pursuant to and in accordance with this Section 10.3 and for any final judgment (subject to any right of appeal), and the prior written consent of Indemnifying Party agrees to indemnify and hold harmless the Indemnified Party (which shall not be unreasonably withheld) before entering into from and against any settlement of a claim or ceasing to defend such claim, if pursuant to or as a result Damages by reason of such settlement or cessationjudgment. For purposes of this Article X, injunction any notice required to be given to one of the Stockholders or other equitable relief will any decision to be imposed against made or action to be taken by one of the Indemnified Party Stockholders shall be deemed to have been properly given, made or taken, as the case may be, if such settlement does not expressly unconditionally release notice is delivered to the Indemnified Party from all liabilities and obligations with respect to Stockholder Representative or such claim, without prejudicedecision is made by or such action is taken by the Stockholder Representative.
Appears in 1 contract
Samples: Merger Agreement (Cancervax Corp)
Defense of Claims. If All rights of a party hereto seeks Person to indemnification under ----------------- this Article 7 shall be asserted and resolved as follows:
(a) Promptly after receipt by a Person entitled to indemnification under Section 8.017.1 or Section 7.2 (an “Indemnified Party”) of notice of any pending or threatened claim, such party (the "Indemnified Party") Party shall give written ------------ ----------------- notice to the other party Person or Persons to whom the Indemnified Party is entitled to look for indemnification (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 (if known and quantifiable), and the basis commencement thereof; provided that the -------- failure so to so notify the Indemnifying Party shall not relieve it of any liability that it may have to the Indemnifying Indemnified Party of its or his obligations hereunder hereunder, except to the extent such failure shall have prejudiced that the Indemnifying Party. Party demonstrates that it is materially prejudiced thereby.
(b) In that regard, if case any action, lawsuit, proceeding, investigation or other claim shall be brought or asserted by any third party which, if adversely determined, would entitle the against an Indemnified Party and it shall give notice to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writingcommencement thereof, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in therein and, if it so desires, to assume the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead thereof with counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which Party and, after notice from the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating of its election to such claim; and
(ii) furnish assume the Indemnified Party with reasonable evidence that the Indemnifying Party is and will be able to satisfy any such liability; and defense thereof, except as provided further that below the Indemnifying Party shall not have be liable to such Indemnified Party under this Article 7 for any fees of other counsel or any other expenses, in each case subsequently incurred by such Indemnified Party in connection with the right to -------- ------- assume control defense thereof, other than reasonable costs of such defense and shall pay the fees and expenses of counsel retained by the Indemnified investigation. Notwithstanding an Indemnifying Party, if the claim which the Indemnifying Party seeks ’s election to assume control (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do soof a claim, the Indemnified Party shall have the right to employ separate counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereofof such claim, but and the fees Indemnifying Party shall bear the reasonable fees, costs and expenses of such separate counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless if: (ai) the employment thereof has been specifically authorized by the Indemnifying Party in writingactual or potential defendants in, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between targets of, any such claim include both the Indemnifying Party and the Indemnified Party. If , and the Indemnified Party shall have reasonably concluded, based on the written opinion of its outside legal counsel, that there may be legal defenses available to it which are different from or additional to those available to the Indemnifying Party and would make representation of both parties by the same counsel inappropriate (in which case the Indemnifying Party shall control not have the right to assume the defense of any such claimclaim on the Indemnified Party’s behalf), (ii) the Indemnifying Party shall obtain have abandoned or failed to diligently pursue the prior written consent defense of such claim within a reasonable time after notice of the institution of such claim, or (iii) the Indemnifying Party shall authorize in writing the Indemnified Party to employ separate counsel at the Indemnifying Party’s expense. If an Indemnifying Party assumes the defense of a claim, the Indemnified Party shall provide all reasonable cooperation to the Indemnifying Party in its defense of such claim, including the retention of and provision to the Indemnifying Party of documentation relevant to such claim (including copies of all relevant notices, complaints, pleadings and demands) and, upon the request of the Indemnifying Party, making employees available on a mutually convenient basis. If an Indemnifying Party assumes the defense of a claim, no compromise or settlement thereof may be effected by the Indemnifying Party without the Indemnified Party’s written consent (which shall not be unreasonably withheldwithheld or delayed); provided that the Indemnifying Party may compromise or settle such claim without the Indemnified Party’s consent so long as (a) before entering into any settlement there is a release of a claim or ceasing to defend such claim, if pursuant to or as a result all liability 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 obligations with respect to such claim and (b) the sole relief provided is monetary damages that are to be paid in full by the Indemnifying Party. In no event shall the Indemnified Party admit any liability with respect to, or settle, compromise or discharge, any claim as to which such Indemnified Party has sought or may seek indemnification under this Agreement without the Indemnifying Party’s prior written consent (which shall not be unreasonably withheld or delayed).
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder which does not involve a claim being asserted by a third party, the Indemnified Party shall as promptly as is practical notify the Indemnifying Party of such claim, without prejudicedescribing such claim and the amount thereof (if known). The failure to give any such notice shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that such failure results in material prejudice to the Indemnifying Party. Upon the giving of such written notice as aforesaid, the Indemnified Party and the Indemnifying Party shall negotiate in good faith for twenty (20) Business Days to resolve such claim. If the claim is not resolved by the end of such period, the Indemnified Party shall have the right to commence legal proceedings for the enforcement of its rights under Section 7.1 or Section 7.2, subject to the provisions of Section 8.8.
Appears in 1 contract
Defense of Claims. If In connection with any claim that may give rise to indemnity under this Section 7 resulting from or arising out of any claim or Proceeding against an Indemnitee by a person or entity that is not a party hereto seeks indemnification under ----------------- this Section 8.01hereto, the Indemnifying Party may but shall not be obligated to (unless such party (the "Indemnified Party") shall give Indemnitee elects not to seek indemnity hereunder for such claim), upon written ------------ ----------------- notice to the other party (relevant Indemnitee, assume the "Indemnifying Party") after receiving written ------------------ notice defense of any action, lawsuit, proceeding, investigation such claim or other claim against it (proceeding if by a third party) or discovering the liability, obligation or facts giving rise Indemnifying Party with respect to such claim or Proceeding acknowledges to the Indemnitee the Indemnitee's right to indemnity pursuant hereto to the extent provided herein (as such claim may have been modified through written agreement of the parties or arbitration hereunder) and provides assurances, satisfactory to such Indemnitee, that the Indemnifying Party will be financially able to satisfy such claim to the extent provided herein if such claim or Proceeding is decided adversely; provided, however, that nothing set forth herein shall be deemed to require the Indemnifying Party to waive any crossclaims or counterclaims the Indemnifying Party may have against the Indemnified Party for indemnificationdamages. The Indemnified Party shall be entitled to retain separate counsel, describing reasonably acceptable to the claimIndemnifying Party, if the Indemnified Counsel shall determine, upon the written advice of counsel, that claims of or defenses available to the Indemnifying Party and the Indemnified Party in connection with such Proceeding may differ. The Indemnifying Party shall be obligated to pay the reasonable fees and expenses of such separate counsel to the extent the Indemnified Party is entitled to indemnification by the Indemnifying Party with respect to such claim or Proceeding under this Section 7.4. If the Indemnifying Party assumes the defense of any such claim or Proceeding, the amount Indemnifying Party shall select counsel reasonably acceptable to such Indemnitee to conduct the defense of such claim or Proceeding, shall take all steps necessary in the defense or settlement thereof (if known and quantifiable)shall at all times diligently and promptly pursue the resolution thereof. If the Indemnifying Party shall have assumed the defense of any claim or Proceeding in accordance with this Section 7.4, and the basis Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any such claim or Proceeding, but only with the prior written consent of such Indemnitee, which consent shall not be unreasonably withheld; provided, however, that the Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness thereof; provided provided, further, that the -------- failure to so notify the Indemnifying Party shall not relieve be authorized to encumber any of the Indemnifying Party assets of any Indemnitee or to agree to any restriction that would apply to any Indemnitee or to its or his obligations hereunder except conduct of business; and provided, further, that a condition to the extent any such failure shall have prejudiced the Indemnifying Party. In that regard, if any action, lawsuit, proceeding, investigation or other claim settlement shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Party to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis a complete release of such claim Indemnitee and the facts pertaining thereto its Affiliates, directors, officers, employees and the Indemnifying Party agents with respect to such claim, including any reasonably foreseeable collateral consequences hereof. Such Indemnitee shall be entitled to participate in (but not control) the defense of any such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at with its expense, own counsel and at its option (subject to the limitations set forth below) own expense. Each Indemnitee shall, and shall be entitled to appoint lead counsel cause each of such defense its Affiliates, directors, officers, employees and agents to, cooperate fully with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to in the Indemnified Party for all Losses relating to such claim; and
(ii) furnish the Indemnified Party with reasonable evidence that defense of any claim or Proceeding being defended by the Indemnifying Party is and will be able pursuant to satisfy any such liability; and provided further that the Indemnifying Party shall not have the right to -------- ------- assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party, if the claim which the Indemnifying Party seeks to assume control (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defendthis Section 7.4. If the Indemnifying Party is permitted to does not assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any claim or Proceeding resulting therefrom in accordance with the terms of this Section 7.4, such claimIndemnitee may defend against such claim or Proceeding in such manner as it may deem appropriate, including settling such claim or proceeding after giving notice of the same to the Indemnifying Party shall obtain Party, on such terms as such Indemnitee may deem appropriate, but only with the prior written consent of the Indemnified Party (Indemnitee which consent shall not be unreasonably withheld) before entering into . If any settlement of a Indemnifying Party seeks to question the manner in which such Indemnitee defended such claim or ceasing Proceeding or the amount of or nature of any such settlement, such Indemnifying Party shall have the burden to prove by a preponderance of the evidence that such Indemnitee did not defend such claim, if pursuant to claim or as Proceeding in 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 obligations with respect to such claim, without prejudicereasonably prudent manner.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Avid Technology Inc)
Defense of Claims. (a) If a an Indemnified Party shall receive written notice of the assertion of any third party hereto seeks indemnification claim with respect to which an Indemnifying Party is obligated under ----------------- this Section 8.01Agreement to provide indemnification, such party (the "Indemnified Party") Party shall give written ------------ ----------------- notice to the other party (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 (if known and quantifiable), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party prompt notice thereof; PROVIDED, HOWEVER, that the failure of any Indemnified Party to give such notice shall not relieve the any Indemnifying Party of its or his obligations hereunder under this Article XII, except to the extent that such Indemnifying Party is actually prejudiced by such failure to give notice. Such notice shall have prejudiced describe the claim in reasonable detail, and, if practicable, shall indicate the estimated amount of the Indemnifiable Loss that has been or may be sustained by such Indemnified Party.
(b) An Indemnifying Party. In that regard, if any action, lawsuit, proceeding, investigation or other claim at such Indemnifying Party's own expense and through counsel chosen by such Indemnifying Party (which counsel shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Party to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant ), may elect to which defend any third party claim; and if it so elects, it shall, within 20 Business Days after receiving notice of such third party claim (or sooner, if the Indemnifying Party agrees to be fully responsible for all Losses relating to nature of such claims and that it will provide full indemnification to third 56 party claim so requires), notify the Indemnified Party for all Losses relating of its intent to do so, and such claim; and
(ii) furnish the Indemnified Party with reasonable evidence that shall cooperate in the defense of such third party claim. Such Indemnifying Party is and will be able shall pay such Indemnified Party's reasonable out-of-pocket expenses incurred in connection with such cooperation. After notice from an Indemnifying Party to satisfy any an Indemnified Party of its election to assume the defense of a third party claim, such liability; and provided further that the Indemnifying Party shall not have the right be liable 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to under this Article XII for any legal or injure the other expenses subsequently incurred by such Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control in connection with the defense and elects to do sothereof; PROVIDED, the HOWEVER, that such Indemnified Party shall have the right to employ one counsel separate from to represent such Indemnified Party and all other persons entitled to indemnification in respect of such claim hereunder (which counsel employed by shall be reasonably acceptable to the Indemnifying Party) if, in such Indemnified Party's reasonable judgment, either a conflict of interest between such Indemnified Party and such Indemnifying Party exists in any respect of such action claim or there may be defenses available to such Indemnified Party which are different from or in addition to those available to such Indemnifying Party, and to participate in that event (i) the defense thereof, but the reasonable fees and expenses of such separate counsel employed shall be paid by the such Indemnifying Party and (ii) each of such Indemnifying Party and such Indemnified Party shall be at have the expense right to direct its own defense in respect of the such claim. If any Indemnifying Party elects not to defend against a third party claim, or fails to notify an Indemnified Party unless (a) of its election within a reasonable period of time, such Indemnified Party may defend, compromise and settle such third party claim; PROVIDED, HOWEVER, that no such Indemnified Party may, without the employment thereof has been specifically authorized by prior written consent of the Indemnifying Party in writing(which consent shall not be unreasonably withheld), settle or (b) compromise any third party claim or consent to the Indemnified Party has been advised entry of any Judgment which does not include as an unconditional term thereof the delivery by legal counsel that a reasonable likelihood exists of a conflict of interest between the claimant to the Indemnifying Party and the Indemnified Partyof a written release from all liability in respect of such third party claim. If the The Indemnifying Party shall control the defense of may defend, compromise and settle any third party claim on such claimterms as it deems appropriate, the PROVIDED, HOWEVER, that no Indemnifying Party shall obtain may, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld) before entering into ), settle or compromise any settlement of a third party claim or ceasing consent to defend such claim, if pursuant the entry of any Judgment which does not include as an unconditional term thereof the delivery by the claimant 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 of a written release the Indemnified Party from all liabilities and obligations with liability in respect to of such third party claim, without prejudice.
Appears in 1 contract
Samples: Asset Purchase Agreement (Fund American Enterprises Holdings Inc)
Defense of Claims. If a party hereto seeks indemnification under ----------------- this Section 8.01, such party (the "Indemnified Party") shall give written ------------ ----------------- notice to the other party (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 (if known and quantifiable), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party shall not relieve 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 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal 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. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheld) before entering into any settlement of a claim or ceasing to defend such claim, if pursuant to or as a result of such settlement or cessation, 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 obligations with respect to such claim, without prejudice.
Appears in 1 contract
Samples: Recapitalization Agreement (Anthony Crane Holdings Capital Corp)
Defense of Claims. If (a) The Indemnifying Party shall, within 30 days after receipt of a party hereto seeks indemnification under ----------------- this Section 8.01, such party (the "Indemnified Party") shall give written ------------ ----------------- notice to the other party (the "Indemnifying Party") after receiving written ------------------ notice of any actionClaim or Proceeding given pursuant to Section 7.2, lawsuiteither (1) acknowledge liability, proceedingas between the Indemnifying Party and the Purchaser, investigation for such Claim or the amount in controversy in such Proceeding and pay the Purchaser the amount of such Claim or the amount in controversy in such Proceeding in cash or other claim against it immediately available funds (if or establish by a third partyagreement with the Purchaser an alternative payment schedule), (2) or discovering the acknowledge liability, obligation as between the Indemnifying Party and the Purchaser, for such Claim or facts giving rise to the amount in controversy in such claim for indemnificationProceeding, describing disavow the claim, validity of the Claim or Proceeding or the amount thereof (if known and quantifiableand, to the extent set forth in Section 7.3(b), assume the legal defense thereof, or (3) object (or reserve the right to object until additional information is obtained) to the claim for indemnification or the amount thereof, setting forth the grounds therefor in reasonable detail; provided that, if the Indemnifying Party objects (or reserves its right to object) within such 30-day period as provided in this Section 7.3, then the Purchaser may bring suit (in the same Proceeding or otherwise) to resolve the dispute and, pending final resolution of such dispute, the Purchaser may proceed as though the Indemnifying Party had responded in accordance with clause (1) above. If the Indemnifying Party does not respond to the Purchaser as provided in this Section 7.3 within such 30-day period, the Indemnifying Party shall be deemed to have acknowledged its liability for such indemnification claim in accordance with clause (1) above and the basis thereof; provided that Purchaser may exercise any and all of its rights under applicable law to collect such amount.
(b) in the -------- failure case of a Claim in respect of a Purchaser Tax Cost arising out of a proceeding involving other issues for which Purchaser is not indemnified hereunder, to so notify elect to participate (directly or through counsel reasonably satisfactory to Purchaser) in the portion of the Proceedings related to the issue constituting the Purchaser Tax Cost, subject to the control of Purchaser over such Proceeding, or (2) in all other cases, to elect to assume the legal defense thereof with counsel reasonably satisfactory to the Purchaser. After notice from the Indemnifying Party to the Purchaser of its election to assume the defense of such claim or such action described in clause (2) hereof, the Indemnifying Party shall not relieve be liable to the Purchaser under this Article for any attorney's fees or other expenses (except reasonable costs of investigation) subsequently incurred by the Purchaser in connection with the defense thereof. In all other cases described in clause (a)(2), the Purchaser may require the Indemnifying Party to reimburse it on a current basis for its reasonable expenses of its or his obligations hereunder except to investigation, reasonable attorneys' and accountants' fees and expenses and reasonable out-of-pocket expenses incurred in the extent such failure shall have prejudiced the Indemnifying Party. In that regard, if any 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto defense thereof and the Indemnifying Party shall be entitled bound by the result obtained with respect thereto by the Purchaser.
(c) An Indemnifying Party will not, without prior written consent of the Purchaser (which consent shall not be unreasonably withheld), settle or compromise or consent to participate the entry of any judgment with respect to any pending or threatened Claim or Proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the defense Purchaser is an actual or potential party to such Claim or Proceeding) unless such settlement, compromise or consent includes an unconditional release of the Purchaser from all liability arising out of such action, lawsuit, proceeding, investigation Claim or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defendProceeding. If the Indemnifying Party is permitted has responded to assume and control the defense and elects Purchaser pursuant to do soclause (a)(1) above (not including a deemed response under the proviso contained in 7.3(a)(3)), the Indemnified Party shall have Purchaser may settle or compromise or consent to the right entry of any judgment with respect to employ counsel separate from counsel employed by the Claim or Proceeding that was the subject of notice to the Indemnifying Party in any such action and pursuant to participate in this Article without the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense consent of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any such claimThe Purchaser will not otherwise, the Indemnifying Party shall obtain without the prior written consent of the Indemnified Indemnifying Party (which consent shall not be unreasonably withheld) before entering into ), settle or compromise or consent to the entry of any settlement of a claim or ceasing 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 obligations judgment with respect to any pending or threatened Claim or Proceeding, but, if such claimClaim or Proceeding is settled or 15 - 15 - compromised or if there is entered any judgment with respect to any such Claim or Proceeding, without prejudicein either case with the consent of the Indemnifying Party, or if there be a final judgment of the plaintiff in any such Claim or Proceeding, the Indemnifying Party agrees to indemnify and hold harmless the Purchaser from and against any loss or liability by reason of such settlement, compromise or judgment.
Appears in 1 contract
Samples: Share Purchase Agreement (Pioneer Natural Resources Co)
Defense of Claims. If a Whenever any claim shall arise for indemnification hereunder, the party hereto seeks entitled to indemnification under ----------------- this Section 8.01, such party (the "Indemnified Party") shall give written ------------ ----------------- notice to promptly notify the other party (the "Indemnifying Party") after receiving written ------------------ notice of any actionthe claim and, 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 claimwhen known, the amount thereof (if known and quantifiable), and facts constituting the basis thereof; provided that for such claim. If the -------- failure Indemnified Party fails to so notify provide the Indemnifying Party shall not relieve with such notice prior to the time at which the Indemnifying Party's ability to defend against such claim is irrevocably prejudiced by the failure to provide such notice, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such portion of its or his obligations hereunder except the claim as to the extent such failure shall have prejudiced which the Indemnifying Party's ability to defend has been prejudiced by such failure. In that regardThe Indemnifying Party may, if any action, lawsuit, proceeding, investigation or other claim shall be brought or asserted by any third party which, if adversely determined, would entitle upon written notice to the Indemnified Party within 30 calendar days of receipt of the notice specified in the first sentence of this paragraph, assume the defense of any such claim if the Indemnifying Party acknowledges to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject right to indemnity pursuant hereto in respect of the limitations set forth below) shall be entitled to appoint lead counsel entirety of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control assumes the defense of any such claim, the Indemnifying Party shall obtain select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim, shall take all steps necessary in the defense or settlement thereof and shall at all times diligently and promptly pursue the resolution thereof. If the Indemnifying Party shall have assumed the defense of any claim in accordance with this Section 7.3, the Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any such claim, without the prior written consent of the Indemnified Party; PROVIDED, HOWEVER, that the Indemnifying Party (which shall not pay or cause to be unreasonably withheld) before entering into any settlement of a claim or ceasing to defend such claim, if pursuant to or as a result paid all amounts arising out of such settlement or cessationjudgment concurrently with the effectiveness thereof; PROVIDED, injunction or other equitable relief will FURTHER, that the Indemnifying Party shall not be imposed against authorized to encumber any of the assets of the Indemnified Party or if to agree to any restriction that would apply to the Indemnified Party, or to any other Buyer or Seller Indemnitee, as applicable, or to its conduct of business or to any other Buyer or Seller Indemnitee, as applicable, or to their conduct of business; AND PROVIDED, FURTHER, that a condition to any such settlement does not expressly unconditionally shall be a complete release of the Indemnified Party from all liabilities and obligations with respect to such claim. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, without prejudicewith its own counsel and at its own expense. The Indemnified Party shall, and shall cause each of its Affiliates, officers, employees, consultants and agents and each other Buyer or Seller Indemnitee, as applicable, to, cooperate fully with the Indemnifying Party in the defense of any claim pursuant to this Section 7.3. If the Indemnifying Party does not assume the defense of any claim resulting therefrom in accordance with the terms of this Section 7.3, the Indemnified Party may defend against such claim in such manner as it may deem appropriate, including settling such claim after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate.
Appears in 1 contract
Defense of Claims. If a party hereto seeks indemnification under ----------------- this Section 8.01, such party (the "Any Indemnified Party") shall Party will give written ------------ ----------------- prompt notice to the other party (the "Indemnifying Party") after receiving written ------------------ notice Parent Company of any actionClaim made (including, lawsuitwithout limitation, proceedingan audit by any taxing authority), investigation or other claim against it (if by a third party) or discovering of which such Indemnified Party is aware and with respect to which the liabilityParent Company may have liability under the indemnification contained in Section 10.02, obligation or facts giving rise to stating the nature and basis of such claim for indemnificationClaim and, describing the claimwithin ten days after receipt of any such notice, the amount thereof (if known and quantifiable), and the basis thereof; provided that the -------- failure to so Parent Company shall notify the Indemnifying Party shall not relieve 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 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 to indemnity pursuant to this Section 8.01that the Parent Company shall, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its sole cost and expense, and defend against any such Claim; PROVIDED, HOWEVER, that if at its option (subject to any time following the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- PartyParent Company's right to assume control assumption of such defense, it must first:
(i) enter into an agreement with the any Indemnified Party (in form and substance reasonably satisfactory should determine that pursuing such defense is inadvisable, such Indemnified Party may waive its rights to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating indemnification with respect to such claims Claim and that it will provide full indemnification require the Parent Company to settle such Claim at the Indemnified Party for all Losses relating to such claim; and
(ii) furnish the Indemnified Party with reasonable evidence that the Indemnifying Party is sole cost and will be able to satisfy any such liability; and provided further that the Indemnifying Party shall not have the right to -------- ------- assume control expense 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control Parent Company fails to so notify each Indemnified Party, any one or more of the Indemnified Parties may, at the sole cost and expense of the Parent Company, defend any such Claim. In the event the Parent Company undertakes the defense of any Claim, it shall be entitled to be represented by counsel of its own choosing. The parties agree to render to each other such claimassistance as may reasonably be required in order to insure the proper and adequate defense of any such Claim. Except as otherwise expressly provided herein, the Indemnifying Parent Company shall have all of the Indemnified Parties' rights with respect to any Claim for which any Indemnified Party is indemnified pursuant to Sections 10.01 through 10.06, including, without limitation, the right to commence its own action or to compromise or settle such Claim; PROVIDED, HOWEVER, that any such Claim shall obtain not be settled or compromised by the Parent Company to the extent such settlement or compromise includes terms binding on any Indemnified Party without the prior written consent of such Indemnified Party, which consent shall not be unreasonably withheld. None of the Indemnified Parties shall make any settlement or compromise of any Claims covered by Section 10.02 without the prior written consent of the Indemnified Party (Parent Company, which consent shall not be unreasonably withheld) before entering into any settlement of a claim or ceasing to defend such claim, if pursuant to or as a result of such settlement or cessation, 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 obligations with respect to such claim, without prejudice.
Appears in 1 contract
Samples: Stock Purchase Agreement (Allou Health & Beauty Care Inc)
Defense of Claims. (a) If an Indemnitee receives notice of the assertion of any claim or of the commencement of any action or proceeding by any person, entity or group (a party hereto seeks "Third Party Claim") against such Indemnitee, with respect to which an Indemnifying Party is obligated to provide indemnification under ----------------- Section 5.01 of this Section 8.01Agreement, such party (the "Indemnified Party") Indemnitee shall 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 shall describe 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 shall have the right to participate in or, by giving written notice to the other party (Indemnitee, to elect to assume the "defense of any Third Party Claim at such Indemnifying Party") after receiving written ------------------ notice of any action, lawsuit, proceeding, investigation or other claim against it 's own expense and by such Indemnifying Party's own counsel (if by a third party) or discovering reasonably satisfactory to the liability, obligation or facts giving rise to such claim for indemnification, describing the claim, the amount thereof (if known and quantifiableIndemnitee), and the basis thereof; Indemnitee shall cooperate in good faith in such defense.
(b) If within 10 calendar days after an Indemnitee receives written notice from an Indemnifying Party that such Indemnifying Party has elected to assume the defense of any Third Party Claim as provided that in the -------- failure to so notify last sentence of Section 5.02(a) hereof, the Indemnifying Party shall not relieve be liable for any legal expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided, however, that if the Indemnifying Party of its or his obligations hereunder except fails to take reasonable steps necessary to defend diligently such Third Party Claim within 10 calendar days after receiving notice from the extent such failure shall have prejudiced Indemnitee that the Indemnifying Party. In that regard, if any 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify Indemnitee believes the Indemnifying Party of has failed to take such steps, the same in writingIndemnitee may assume its own defense, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim liable for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) furnish the Indemnified Party with any 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defendtherefor. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall obtain Without the prior written consent of the Indemnified Indemnitee, the Indemnifying Party (which shall not be unreasonably withheld) before entering enter into any settlement of the 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 reimbursement hereunder.
(c) Any claim by an Indemnitee on account of any Indemnifiable Loss which does not result from a claim or ceasing Third Party Claim (a "Direct Claim") shall be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 30 calendar days after the Indemnitee becomes aware of such Direct Claim, and the Indemnifying Party shall have a period of 30 calendar days within which to defend respond to such Direct Claim. If the Indemnifying Party does not so respond within such 30 calendar day period, the Indemnifying Party shall be deemed to have rejected such claim, if pursuant in which event the Indemnitee shall be free to pursue such remedies as may be available to the Indemnitee under any applicable Laws, subject to the terms of this Agreement, including, without limitation, the enforcement of the Indemnitee's rights under this Agreement.
(d) A failure to give timely notice as provided in this Section 5.02 shall not affect the rights or obligations of any party hereunder except and only to the extent that, as a result of such settlement failure, any party which was entitled to receive such notice was deprived of its right to recover any payment under its applicable insurance coverage or cessationincurred an obligation or liability which otherwise would have been avoided.
(e) Upon making any Indemnity Payment the Indemnifying Party shall, injunction or 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 lndemnity Payment related; 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 party on account of said Indemnity Party is hereby made expressly subordinated and subjected in right of payment to the Indemnitee's rights against such third party. Without limiting the generality of any other equitable relief will be imposed against provision hereof, each such Indemnitee and Indemnifying Party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the Indemnified Party or if such settlement does not expressly unconditionally release the Indemnified Party from all liabilities above-described subrogation and obligations with respect to such claim, without prejudicesubordination rights.
Appears in 1 contract
Defense of Claims. (a) If a an Indemnified Party shall receive written notice of the assertion of any third party hereto seeks indemnification claim with respect to which an Indemnifying Party is obligated under ----------------- this Section 8.01Agreement to provide indemnification, such party (the "Indemnified Party") Party shall give written ------------ ----------------- notice to the other party (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 (if known and quantifiable), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party prompt notice thereof; provided, however, that the failure of any Indemnified Party to give such notice shall not relieve the any Indemnifying Party of its or his obligations hereunder under this Article XII, except to the extent that such Indemnifying Party is actually materially prejudiced by such failure to give notice. Such notice shall have prejudiced describe the claim in reasonable detail, and, if practicable, shall indicate the estimated amount of the Indemnifiable Loss that has been or may be sustained by such Indemnified Party.
(b) An Indemnifying Party. In that regard, if any action, lawsuit, proceeding, investigation or other claim at such Indemnifying Party's own expense and through counsel chosen by such Indemnifying Party (which counsel shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Party to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant ), may elect to which defend any third party claim; and if it so elects, it shall, within 20 Business Days after receiving notice of such third party claim (or sooner, if the Indemnifying Party agrees to be fully responsible for all Losses relating to nature of such claims and that it will provide full indemnification to third party claim so requires), notify the Indemnified Party for all Losses relating of its intent to do so, and such claim; and
(ii) furnish the Indemnified Party with reasonable evidence that shall cooperate in the defense of such third party claim. Such Indemnifying Party is and will be able shall pay such Indemnified Party's reasonable out-of-pocket expenses incurred in connection with such cooperation. After notice from an Indemnifying Party to satisfy any an Indemnified Party of its election to assume the defense of a third party claim, such liability; and provided further that the Indemnifying Party shall not be liable to such Indemnified Party under this Article XII for any legal or other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof; provided, however, that such Indemnified Party shall have the right to -------- ------- assume control employ one counsel to represent such Indemnified Party and all other Persons entitled to indemnification in respect of such defense claim hereunder (which counsel shall be reasonably acceptable to the Indemnifying Party) if, in such Indemnified Party's reasonable judgment (after consultation with counsel), either a conflict of interest between such Indemnified Party and shall pay such Indemnifying Party exists in respect of such Claim or there may be defenses available to such Indemnified Party which are different from or in addition to those available to such Indemnifying Party, and in that event (i) the reasonable fees and expenses of such separate counsel retained shall be paid by the Indemnified Party, if the claim which the Indemnifying Party seeks to assume control and (Aii) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that each of the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by direct its own defense in respect of such Claim. If any Indemnifying Party elects not to defend against a third party claim, or fails to notify an Indemnified Party of its election within a reasonable period of time, such Indemnified Party may defend, compromise and settle such third party claim; provided, however, that no such Indemnified Party may, without the prior written consent of the Indemnifying Party in (which consent shall not be unreasonably withheld), settle or compromise any third party claim or consent to the entry of any Judgment which does not include as an unconditional term thereof the delivery by such action and third party to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict written release from all liability in respect of interest between the such third party claim. The Indemnifying Party may defend, compromise and the Indemnified Party. If the settle any third party claim on such terms as it deems appropriate, provided, however, that no Indemnifying Party shall control the defense of any such claimmay, the Indemnifying Party shall obtain without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld) before entering into ), settle or compromise any settlement of a third party claim or ceasing consent to defend the entry of any Judgment which does not include as an unconditional term thereof the delivery by such claim, if pursuant third party to or as a result of such settlement or cessation, injunction or other equitable relief will be imposed against the Indemnified Party or if of a written release from all liability in respect of such settlement does not expressly unconditionally release the third party claim. If any Indemnifying Party elects to defend against a third party claim, no Indemnified Party from all liabilities and obligations with respect shall settle or compromise on such claim or consent to such claimthe entry of a judgment without the prior written consent of the Indemnifying Party, without prejudicewhich consent shall not be unreasonably withheld.
Appears in 1 contract
Defense of Claims. (a) If any Indemnitee receives notice of the assertion of any claim or of the commencement of any action or proceeding by any Third Party (a party hereto seeks “Third Party Claim”) against such Indemnitee, with respect to which an Indemnifying Party is obligated to provide indemnification under ----------------- this Section 8.01Agreement, the Indemnitee will give such party Indemnifying Party reasonably prompt written notice thereof, but in any event not later than ten (the "Indemnified Party"10) shall give written ------------ ----------------- notice to the other party (the "Indemnifying Party") calendar days after receiving written ------------------ receipt of notice of any actionsuch Third Party Claim; provided, lawsuithowever, 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 (if known and quantifiable), and the basis thereof; provided that the -------- failure of the Indemnitee to so notify the Indemnifying Party shall not only relieve the Indemnifying Party of from its or his obligations hereunder except obligation to indemnify the Indemnitee pursuant to this Article XV to the extent such failure shall have prejudiced the Indemnifying Party. In that regard, if any 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party is materially prejudiced by such failure (whether as a result of the same in writingforfeiture of substantive rights or defenses or otherwise). Upon receipt of notification of a Third Party Claim, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in the defense of such actionentitled, lawsuit, proceeding, investigation or other claim giving rise upon written notice to the Indemnified Party's claim for indemnification at its expenseIndemnitee, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defensethe investigation and defense thereof; provided, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) furnish the Indemnified Party with reasonable evidence that the Indemnifying Party is and will be able to satisfy any such liability; and provided further however, that the Indemnifying Party shall not have the right to -------- ------- assume control of such the defense unless and shall pay the fees and expenses of counsel retained by the Indemnified Party, if the claim which until the Indemnifying Party seeks agrees in writing to assume control (A) seeks non-monetary reliefindemnify the Indemnitee with respect to such Third Party Claim, (B) involves criminal subject to the applicable limitations set forth herein. Whether or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that not the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted elects to assume the investigation and control the defense and elects to do soof any Third Party Claim, the Indemnified Party Indemnitee shall have the right to employ separate counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the investigation and defense thereof; provided, but however, that the Indemnitee shall pay the fees and expenses disbursements of such separate counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (ai) the employment thereof of such separate counsel has been specifically authorized in 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 and in writingaccordance with Section 15.4(a), or (biii) the Indemnified Party named parties to the proceeding in which such claim, demand, action or cause of action has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between asserted include both the Indemnifying Party and such Indemnitee and, in the Indemnified reasonable judgment of counsel to such Indemnitee, there exists one or more defenses that may be available to the Indemnitee that are not available to or are in conflict with those available to the Indemnifying Party. If Notwithstanding the Indemnifying Party shall control the defense of any such claimforegoing, the Indemnifying Party shall obtain not be liable for the fees and disbursements of more than one counsel for all Indemnified Parties 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 Indemnified Indemnitee, the Indemnifying Party (which shall will not be unreasonably withheld) before entering 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. If a claim 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 ceasing defenses against the Indemnitee, the Indemnitee may continue to defend contest such claim, if pursuant 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 (A) 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 as a result (B) the aggregate Indemnifiable Losses 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 obligations 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, without prejudicebut 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 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). 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 so respond within such 30 calendar day period, the 57 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 XV.
(c) 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 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 (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 effect 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.
(d) The Indemnifying Party shall, upon presentation of appropriate invoices containing reasonable detail, reimburse the Indemnitee for all expenses incurred in connection with any Third Party Claim, as such expenses are incurred by such Indemnitee; provided, however, that such expenses shall be refunded to the extent that such expenses arose primarily from the gross negligence, bad faith or willful misconduct of such Indemnitee.
Appears in 1 contract
Samples: Asset Purchase Agreement
Defense of Claims. If a party hereto seeks indemnification under Any Buyer Indemnitee or Seller Indemnitee ----------------- this Section 8.01, such party (the "Indemnified Party") seeking indemnification under this Agreement shall ----------------- give written ------------ ----------------- notice to the other party obligated to provide indemnification to such Indemnified Party (the "Indemnifying PartyIndemnitor") after receiving 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 action, lawsuit, proceeding, investigation or other claim against it (if by of a third party) or discovering the liability, obligation or facts giving rise to such claim for indemnification, describing the claim, the amount thereof (if known and quantifiable), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party shall not relieve 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 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in Indemnitor may assume the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead thereof with counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant Party and, in such event, shall agree to which pay and otherwise discharge with the Indemnifying Party agrees to be fully responsible for Indemnitor's own assets all Losses relating to such claims judgments, deficiencies, damages, settlements, liabilities, losses, costs and that it will provide full indemnification to legal and other expenses related thereto; and the Indemnified Party for shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and attend all Losses relating to such claim; and
(ii) furnish conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection therewith. If the Indemnitor does not assume the defense thereof, the Indemnitor shall similarly cooperate with 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 have the right to -------- ------- assume control of in 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defendprosecution. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereofor prosecution of any lawsuit with respect to which the Indemnitor has assumed the defense and to employ its own counsel therein, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (ai) the employment thereof has been specifically authorized by Indemnitor shall not have promptly employed counsel reasonably satisfactory to such Indemnified Party to take charge of the Indemnifying Party in writing, defense of such action or (bii) the such Indemnified Party has been advised by legal counsel shall have reasonably concluded that there exists a reasonable likelihood exists of a significant conflict of interest between with respect to the Indemnifying Party conduct of such Indemnified Party's defense by the Indemnitor, in either of which events such fees and expenses shall be borne by the Indemnitor and the Indemnified Party. If Indemnitor shall not have the Indemnifying Party shall control right to direct the defense of any such claimaction on behalf of the Indemnified Party. The Indemnitor shall have the right, in its sole discretion, to settle any claim solely for monetary damages for which indemnification has been sought and is available hereunder, provided that the Indemnifying Indemnitor shall 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 shall obtain would have an adverse continuing effect on the business of the Indemnified Party without the prior written consent of the Indemnified Party. The Indemnified Party (which shall not be unreasonably withheld) before entering into give written notice to the Indemnitor of any proposed settlement of a claim or ceasing to defend such claimany suit, which settlement the Indemnitor may, if pursuant to or as a result it shall have assumed the defense of the suit, reject in its reasonable judgment within 10 days of receipt of such settlement or cessation, injunction or other equitable relief will be imposed against notice. Notwithstanding the foregoing the Indemnified Party shall have the right to pay or settle any suit for which indemnification has been sought and is available hereunder, provided that, if the defense of such settlement does not expressly unconditionally release claim shall have been -------- assumed by the Indemnified Indemnitor, the Indemni-fied Party from all liabilities and obligations with respect shall automatically be deemed to such claim, without prejudicehave waived any right to indemnification hereunder.
Appears in 1 contract
Samples: Asset Purchase Agreement (Medical Resources Inc /De/)
Defense of Claims. If a Whenever any claim shall arise for indemnification hereunder, the party hereto seeks entitled to indemnification under ----------------- this Section 8.01, such party (the "“Indemnified Party"”) shall give written ------------ ----------------- notice to promptly notify the other party (the "“Indemnifying Party"”) after receiving written ------------------ notice in writing of any actionthe claim and, 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 claimwhen known, the amount thereof (if known and quantifiable), and facts constituting the basis thereof; provided that the -------- failure to so notify the for such claim. The Indemnifying Party shall not relieve the Indemnifying Party of its or his obligations hereunder except to the extent such failure shall have prejudiced the Indemnifying Party. In that regardmay, if any 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification upon written notice to the Indemnified Party for all Losses relating within 30 calendar days of receipt of the notice specified in the first sentence of this paragraph, assume the defense of any such claim if the Indemnifying Party acknowledges to such claim; and
(ii) 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 have the right to -------- ------- assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party, if ’s right to indemnity pursuant hereto in respect of the claim which the Indemnifying Party seeks to assume control (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defendentirety of such claim. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control assumes the defense of any such claim, the Indemnifying Party shall obtain select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim, shall take all steps reasonably necessary in the defense or settlement thereof and shall at all times use commercially reasonable efforts to diligently and promptly pursue the resolution thereof. If the Indemnifying Party shall have assumed the defense of any claim in accordance with this Section 16(b), the Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any such claim, without the prior written consent of the Indemnified Party; provided, however, that (i) the Indemnifying Party (which shall not pay or cause to be unreasonably withheld) before entering into any settlement of a claim or ceasing to defend such claim, if pursuant to or as a result paid all amounts arising out of such settlement or cessation, injunction or other equitable relief will judgment concurrently with the effectiveness thereof; (ii) the Indemnifying Party shall not be imposed against authorized to encumber any of the assets of the Indemnified Party or if such settlement does not expressly unconditionally release to agree to any restriction that would apply to the Indemnified Party from all liabilities or to its conduct of business; and obligations (iii) a condition to any such settlement shall be a complete release of the Indemnified Party with respect to such claimclaim which contains no admission of liability on the part of the Indemnified Party. The Indemnified Party shall be entitled to participate in the defense of any such action, without prejudicewith its own counsel and at its own expense. The Indemnified Party shall, and shall cause each of its Affiliates, officers, employees, consultants and agents to, cooperate fully with the Indemnifying Party in the defense of any claim or Proceeding being defended by the Indemnifying Party pursuant to this Section 16(b). If the Indemnifying Party does not assume the defense of any claim resulting therefrom in accordance with the terms of this Section 16(b), the Indemnified Party may defend against such claim in such manner as it may deem appropriate, including settling such claim after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate.
Appears in 1 contract
Samples: Stock Purchase Agreement (Planet Technologies, Inc)
Defense of Claims. If a The Indemnified Party may initially undertake the defense of any third party hereto seeks indemnification under ----------------- this Section 8.01, such party Loss Claim (at the "Indemnified Party") shall give written ------------ ----------------- notice to expense of the other party (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 (if known and quantifiable), and the basis thereof; provided that the -------- failure to so notify until the Indemnifying Party shall not relieve 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 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same has acknowledged in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) furnish the Indemnified Party with reasonable evidence writing that the Indemnifying Party is and indemnifying the Indemnified Party with respect to such Loss Claim, whether or not involving litigation, at which point the Indemnifying Party will be able entitled to satisfy assume the defense of such Loss Claim; provided that the Indemnified Party may at any time, at its election, participate (including through representation by attorneys of its own) in such liabilitydefense; provided that such participation shall be at the Indemnified Party's own expense unless the named parties to such Loss Claim (including any impleaded parties), including both the Indemnified Party and provided further the Indemnifying Party, shall have been advised by counsel that there are one or more legal defenses available to it which are different from or additional to those available to the Indemnifying Party, it being understood, however, that in such case the Indemnifying Party shall not have not, in connection with any one such action or separate but substantially similar or related actions in the right to -------- ------- assume control same jurisdiction arising out of such defense and shall pay the same general allegations or circumstances, be liable for the reasonable fees and expenses of counsel retained by the Indemnified Party, if the claim which more than one separate firm of attorneys. At the Indemnifying Party seeks to assume control (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do soreasonable request, the Indemnified Party shall have the right to employ counsel separate from counsel employed by will cooperate with the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses preparation of such counsel employed by defense if the Indemnifying Party reimburses the Indemnified Party shall be at for the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party reasonable expenses incurred in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Partyconnection with such request. If the The Indemnifying Party shall control the defense of not settle any such claim, the Indemnifying Party shall obtain Loss Claim for consideration other than money without the prior written consent of the Indemnified Party (which and the Indemnifying Party shall not be unreasonably withheld) before entering into not, without the prior written consent of the Indemnified Party, settle or compromise any settlement of a claim or ceasing consent to defend such claim, if pursuant the entry of any judgment that does not include as an unconditional term thereof the giving by the claimant or plaintiff to or as a result of such settlement or cessation, injunction or other equitable relief will be imposed against the Indemnified Party or if of a release from all Liability in respect of such settlement does not expressly unconditionally release the Loss Claim. The Indemnified Party from shall not settle any Loss Claim so long as the Indemnifying Party is reasonably contesting any such Loss Claim in good faith. The party contesting or defending a third party Loss Claim shall afford to the other party and its counsel an opportunity to be present, and to participate in conferences with all liabilities persons, including governmental authorities, asserting such claims and obligations conferences with respect to representatives or counsel for such claim, without prejudicepersons.
Appears in 1 contract
Defense of Claims. If a any legal proceedings shall be instituted or any claim is asserted by any third party in respect of which any party hereto seeks indemnification under ----------------- this Section 8.01may have an obligation to indemnify another party, the party asserting such party 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 thereof, but 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 (if known and quantifiable), and the basis thereof; provided that the -------- 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 of its or his obligations hereunder except to the extent such failure is actually prejudiced thereby. The Indemnifying Party shall have prejudiced 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. In that regard, if any action, lawsuit, proceeding, investigation or other claim shall be brought or asserted by any third party which, if adversely determined, would entitle Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to indemnity pursuant such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to this Section 8.01, indemnify the Indemnified Party shall ------------ promptly notify Party, in which case, the Indemnifying Party of may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party; provided, however, that:
(a) the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Indemnified Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise and to the Indemnified Party's claim for indemnification employ counsel at its expense, and at its option (subject own expense to assist in the limitations set forth below) shall be entitled to appoint lead counsel handling of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) furnish the Indemnified Party with reasonable evidence provided, however, that the Indemnifying Party is and will be able to satisfy any such liability; and provided further that the Indemnifying Party shall not have the right to -------- ------- assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party, if the claim which the Indemnifying Party seeks to assume control (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses employment of such counsel employed by the Indemnified Party shall be at the expense of the Indemnifying Party if the Indemnified Party unless (a) the employment thereof has been specifically authorized by determines in good faith that such participation is appropriate in light of defenses not available to the Indemnifying Party in writingParty, conflicts of interest or other similar circumstances;
(b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall obtain the prior written consent approval of the Indemnified Party (which shall not be unreasonably withheld) before entering into any settlement of a 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), if pursuant and the Indemnified Party shall be entitled to have sole control over, the defense or as a result settlement of such settlement or cessation(A) any claim to the extent the claim seeks an order, injunction injunction, non-monetary or other equitable relief will be imposed against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or if such settlement does not expressly unconditionally release otherwise) or prospects of the Indemnified Party from all liabilities and obligations with respect 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 claimaction, without prejudice.the Indemnifying Party
Appears in 1 contract
Defense of Claims. (a) If any Indemnitee receives written notice of the assertion of any claim or of the commencement of any claim, action, or proceed ing made or brought by any Person who is not a party hereto seeks 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 a person required to provide indemnification under ----------------- this Section 8.01, such party Agreement (the "Indemnified Party") shall give written ------------ ----------------- notice to the other party (the an "Indemnifying Party") ), the Indemnitee will give such Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 30 days after receiving 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 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 action, lawsuit, proceeding, investigation or other claim against it (if Third Party Claim at such Indemnifying Party's own expense and by a third party) or discovering the liability, obligation or facts giving rise to such claim for indemnification, describing the claim, the amount thereof (if known and quantifiable)Indemnifying Party's own counsel, and the basis thereof; provided that the -------- failure Indemnitee will cooperate in good faith in such defense at such Indemnitee's own expense.
(b) If within ten calendar days after an Indemnitee provides written notice to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its or his obligations hereunder except to any Third Party Claim the extent such failure shall have prejudiced the Indemnifying Party. In that regard, if any 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify Indemnitee receives written notice from the Indemnifying Party of that such Indemnifying Party has elected to assume the same in writing, specifying in detail the basis defense of such claim and Third Party Claim as provided in the facts pertaining thereto last sentence of Section 15.4(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 20 calendar days (unless waiting 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 shall will be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible liable for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defendthereof. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall obtain Without the prior written consent of the Indemnified Indemnitee, the Indemnifying Party (which shall will not be unreasonably withheld) before entering 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 ceasing 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 business 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 Indemnify ing Party as to such Third Party Claim will be the amount of such settlement offer, plus reasonable costs and expenses paid or incurred by the Indemnitee up to the date of such notice. Notwithstanding the foregoing, the Indemnitee shall have the right to pay, compromise, or settle any Third Party Claim 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 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 be waived.
(c) 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 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 later than 30 calendar days after the Indemnitee becomes aware of such Direct Claim, and the Indemnifying Party will have a period of 30 calendar days within which to respond to such Direct Claim. If the Indemnify ing Party does not respond within such 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.
(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, if pursuant 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 Chase Manhattan Bank, 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 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 Indemnify ing 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 15.4(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 15.4 will not affect the rights or obligations of any Party hereunder except if, and only to the extent that, as a result of such settlement or cessationfailure, injunction or other equitable relief will be imposed against the Indemnified Party or if which was entitled to receive such settlement does not expressly unconditionally release the Indemnified Party from all liabilities and obligations with respect to notice was actually prejudiced as a result of such claim, without prejudicefailure.
Appears in 1 contract
Samples: Western Load Pocket Call Option Agreement (Orange & Rockland Utilities Inc)
Defense of Claims. (a) If any 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 hereto seeks to this Agreement or an affiliate of a party to this Agreement (a “Third Party Claim”) with respect to which indemnification under ----------------- this Section 8.01is to be sought from an Indemnifying Party, the Indemnitee will give such party Indemnifying Party prompt written notice thereof. Such notice shall describe the nature of the Third Party Claim in reasonable detail (including a copy of the "Indemnified Party"Third Party Claim, if made in writing) and shall give indicate the estimated amount, if practicable, of the Indemnifiable Loss that has been or may be sustained by the Indemnitee.
(b) The Indemnifying Party will have the right to participate in or, by giving written ------------ ----------------- notice to the other party (Indemnitee, assume the "defense of any Third Party Claim at such Indemnifying Party") after receiving written ------------------ notice of any action’s own expense and by such Indemnifying Party’s own counsel, lawsuitby all appropriate proceedings, 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 (if known and quantifiable)which proceedings will be diligently prosecuted, and the basis thereof; provided that Indemnitee will upon reasonable request of an Indemnifying Party cooperate in good faith in such defense at the -------- failure to so notify Indemnifying Party’s expense. If the Indemnifying Party has not assumed the defense of a Third Party Claim with respect to which indemnification is sought pursuant to Section 9.1(a)(iii), it shall reimburse the Indemnittee for reasonable attorneys’ fees, costs and expenses incurred by the Indemnitee in such defense in a timely manner following receipt of notice from the Indemnitee requesting reimbursement. If the Indemnifying Party has assumed the defense of any Third Party Claim, it will not relieve be liable for any legal fees, costs or expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided, however, in the event the Indemnitee reasonably determines in its judgment that having common counsel would present such counsel with a conflict of interest or if the defendants in any such Third Party Claim include both such Indemnitee and the Indemnifying Party and such Indemnitee shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to the Indemnifying Party, then such Indemnitee shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such Third Party Claim on behalf of such Indemnitee and the Indemnifying Party will pay the reasonable and customary fees and disbursements of one such counsel. Notwithstanding the foregoing sentence, in the event that the Purchaser Group incurs attorneys’ fees, costs or expenses related to a claim, demand, suit or allegation by the Purchaser Group contending that the Seller or a subsidiary of the Seller, on the one hand, and one or more of the Companies or Subsidiaries, on the other hand, are jointly and severally liable for purposes of Section 9.1(a)(iv), (i) if a court of competent jurisdiction in the United States or any state issues a final order, judgment or decree that is not subject to reasonable further appeal finding that the Seller or any subsidiary of the Seller, on the one hand, and one or more of the Companies or Subsidiaries, on the other hand, are jointly and severally liable in respect of such claim, demand or suit, the Seller shall reimburse the Purchaser Group for the reasonable and customary fees and disbursements of the Purchaser Group’s counsel in pursuing such claim, demand or suit, and (ii) if a court of competent jurisdiction in the United States or any state issues a final order, judgment or decree that is not subject to reasonable further appeal that does not find that the Seller or any subsidiary of the Seller, on the one hand, and one or more of the Companies or Subsidiaries, on the other hand, are jointly and severally liable in respect of such claim, demand or suit, the Purchaser shall reimburse the Seller for the reasonable and customary fees and disbursements of the Seller’s counsel in defending such claim, demand or suit. Without the prior written consent of the Indemnitee (not to be unreasonably withheld, delayed or conditioned), 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 does not simultaneously receive full indemnification or that would fail to result in the Indemnitee receiving a release of any Third Party Claims. If the Indemnifying Party does not fulfill its obligation to assume the defense within thirty (30) days after an Indemnitee provides written notice to the Indemnifying Party of its or his obligations hereunder except any Third Party Claim, then the Indemnitee will have the right to the extent defend against such failure shall have prejudiced the Indemnifying Party. In that regardThird Party Claim, if any 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate liable for the Indemnitee’s reasonable costs and expenses, including reasonable attorneys’ fees, incurred in the defense of such actionconnection therewith; provided, lawsuithowever, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control assume the defense of such Third Party Claim at any such claimtime thereafter; and provided, further, that the Indemnifying Indemnitee shall not settle or compromise a Third Party shall obtain Claim without the prior written consent of the Indemnified Party (Indemnifying Party, which consent shall not be unreasonably withheld, delayed or conditioned.
(c) before entering into 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 of a claim or ceasing otherwise under or pursuant to defend such any insurance coverage, or pursuant to any claim, if pursuant 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, 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; provided, however, that (i) the Indemnifying Party is then 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 subject in right of payment to the Indemnitee’s rights against such third party.
(d) A failure to give timely notice as provided in this Section 9.2 will not affect the rights or obligations of any party hereunder except if, and only to the extent that, as a result of such settlement or cessationfailure, injunction or other equitable relief will be imposed against the Indemnified Party or if party that was entitled to receive such settlement does not expressly unconditionally release the Indemnified Party from all liabilities and obligations with respect to notice was materially prejudiced as a result of such claim, without prejudicefailure.
Appears in 1 contract
Defense of Claims. If a claim for Damages (a "Claim") is made ----------------- by a party hereto seeks entitled to Indemnification or Set Off Rights hereunder against the Indemnifying Party, the party claiming such indemnification under ----------------- this Section 8.01, such or Set Off Rights shall give written notice (a "Claim Notice") to the other Party (the ("Indemnifying Party") as soon as practicable after the party entitled to indemnification or Set Off Rights (the "Indemnified Party") shall becomes aware of any fact, condition or event which may give written ------------ ----------------- notice rise to Damages for which indemnification or Set Off Rights may be sought under this Section 10.5. If any lawsuit or enforcement action is filed against any party entitled to the other party benefit of indemnity or Set Off Rights hereunder, the Claim Notice thereof shall be given to the Indemnifying Party as promptly as practicable (and in any event within thirty (30) calendar days after the "Indemnifying Party") after receiving written ------------------ notice service of the citation or summons). The failure of any actionIndemnified Party to give timely notice hereunder shall not affect rights to indemnification or Set Off Rights hereunder, lawsuit, proceeding, investigation or other claim against it (if by a third party) or discovering except to the liability, obligation or facts giving rise to such claim for indemnification, describing the claim, the amount thereof (if known and quantifiable), and the basis thereof; provided extent that the -------- failure to so notify Indemnifying Party demonstrates actual damage caused by such failure. After such notice, if the Indemnifying Party shall not relieve the Indemnifying Party of its or his obligations hereunder except acknowledge in writing to the extent such failure shall have prejudiced the Indemnifying Party. In that regard, if any 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and that the Indemnifying Party shall be entitled to participate obligated under the terms of its indemnity or Set Off Rights hereunder in the defense of connection with such lawsuit or action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 then the Indemnifying Party shall not have the right be entitled, if it so elects, (1) to -------- ------- assume take control of such the defense and shall pay investigation of such lawsuit or action, (2) to employ and engage attorneys of its own choice to handle and defend the fees same, at the Indemnifying Party's cost, risk and expenses of counsel retained by expense unless the Indemnified Party, if the claim which named parties to such action or proceeding include both the Indemnifying Party seeks to assume control (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which and the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised in writing by legal counsel that a reasonable likelihood exists of a conflict of interest between there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party Party, and (3) to compromise or settle such Claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. If the Indemnifying Party shall control fails to assume the defense of any such Claim within fifteen (15) calendar days after receipt of the Claim Notice, the Indemnified Party against which such Claim has been asserted will (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party's cost and expense, the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party. In the event the Indemnified Party assumes the defense of the claim, the Indemnified Party will keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheld) before entering into liable for any settlement of a claim or ceasing to defend such claim, if any action effected pursuant to or as a result and in accordance with this Section 10.5 and for any final judgment (subject to any right of appeal), and the Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any Damages by reason 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 obligations with respect to such claim, without prejudicejudgment.
Appears in 1 contract
Defense of Claims. If a party hereto seeks indemnification under ----------------- this Section 8.01, such party (the "Third Party Claim is made against a Purchase and Sale Indemnified Party", (a) Parent Originator will be entitled to participate in the defense thereof and, (b) if it so chooses, to assume the defense thereof with counsel selected by Parent Originator; provided that, in connection with such assumption (i) such counsel is not reasonably objected to by the Purchase and Sale Indemnified Party, (ii) no material conflict of interest shall give written ------------ ----------------- notice to the other party (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 exist in relation to such claim for indemnification, describing the claim, the amount thereof (if known Third Party Claim between such Purchase and quantifiable)Sale Indemnified Party and Parent Originator, and (iii) Parent Originator, first admits in writing its liability to indemnify the basis thereof; provided that the -------- failure Purchase and Sale Indemnified Party with respect to so notify the Indemnifying Party shall not relieve the Indemnifying Party all elements of its or his obligations hereunder except such claim in full to the extent such failure shall have prejudiced claim is valid. Should Originator so elect to assume the Indemnifying Party. In that regarddefense of a Third Party Claim, if any action, lawsuit, proceeding, investigation or other claim shall the Originators will not be brought or asserted by any third party which, if adversely determined, would entitle liable to the Purchase and Sale Indemnified Party for any legal expenses subsequently incurred by the Purchase and Sale Indemnified Party in connection with the defense thereof. If Parent Originator elects to indemnity pursuant to this Section 8.01assume the defense of a Third Party Claim, the Purchase and Sale Indemnified Party will (i) cooperate in all reasonable respects with the Originators in connection with such defense and (ii) not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without prior written consent Parent Originator and any Sub-Originator that may be liable with respect to such Third Party Claim. If Parent Originator shall ------------ promptly notify assume the Indemnifying defense of any Third Party of Claim, the same in writing, specifying in detail the basis of such claim Purchase and the facts pertaining thereto and the Indemnifying Sale Indemnified Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth belowbut not control) shall be entitled to appoint lead counsel of such defense with reputable its own counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defendat its own expense. If the Indemnifying Party is permitted to Parent Originator does not assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any such claimThird Party Claim, the Indemnifying Party shall obtain the prior written consent of the Purchase and Sale Indemnified Party (which may defend the same in such manner as it may deem appropriate, including settling such claim or litigation after giving prompt notice of such terms to Parent Originator and any other Originator that may be liable for such Third Party Claim, and Parent Originator and such Sub-Originator will promptly reimburse the Purchase and Sale Indemnified Party upon written request. Anything contained in this Agreement to the contrary notwithstanding, Parent Originator shall not be unreasonably withheld) before entering into entitled to assume the defense of any settlement part of a claim or ceasing to defend such claim, if pursuant to or as a result of such settlement or cessationThird Party Claim that seeks an order, injunction or other equitable relief will be imposed or relief for other than money damages against the Purchase and Sale Indemnified Party or if such settlement does not expressly unconditionally release the Indemnified Party from all liabilities and obligations with respect to such claim, without prejudiceParty.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Charming Shoppes Inc)
Defense of Claims. If a 33.4.1 The Indemnified Party shall have the right, but not the obligation, to contest, defend and litigate any claim, action, suit or proceeding by any third party hereto seeks indemnification under ----------------- this Section 8.01alleged or asserted against such Party in respect of, such party (the "Indemnified Party") shall give written ------------ ----------------- notice resulting from, related to the other party (the "Indemnifying Party") after receiving written ------------------ notice or arising out of any action, lawsuit, proceeding, investigation or other claim against matter for which it (if by a third party) or discovering the liability, obligation or facts giving rise is entitled to such claim for indemnification, describing the claim, the amount thereof (if known and quantifiable)be indemnified hereunder, and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party reasonable costs and expenses thereof shall not relieve the Indemnifying Party of its or his obligations hereunder except to the extent such failure shall have prejudiced be indemnified by the Indemnifying Party. In that regard, if any action, lawsuit, proceeding, investigation or other claim shall be brought or asserted by any third party which, if adversely determined, would entitle If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party in respect of loss to indemnity pursuant to the full extent provided by this Section 8.01Article 33, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in the defense of such actionentitled, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expenseoption, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense of such claim, action, suit or proceeding, liabilities, payments and elects obligations at its expense and through the counsel of its choice; provided it gives prompt notice of its intention to do soso to the Indemnified Party and reimburses the Indemnified Party for the reasonable cost and expenses incurred by the Indemnified Party prior to the assumption by the Indemnifying Party of such defense. The Indemnifying Party shall not be entitled to settle or compromise any claim, demand, action, suit or proceeding without the prior written consent of the Indemnified Party, unless the Indemnifying Party provides such security to the Indemnified Party as shall be reasonably required by the Indemnified Party to secure the loss to be indemnified hereunder to the extent so compromised or settled.
33.4.2 If the Indemnifying Party has exercised its rights under Clause 33.3, the Indemnified Party shall not be entitled to settle or compromise any claim, action, suit or proceeding without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed).
33.4.3 If the Indemnifying Party exercises its rights under Clause 33.3, the Indemnified Party shall nevertheless have the right to employ its own counsel, and such counsel separate from counsel employed by the Indemnifying Party in any such action and to may participate in the defense thereofsuch action, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless Party, when and as incurred, unless:
(a) the employment thereof of counsel by such party has been specifically authorized in writing by the Indemnifying Party in writing, or Party; or
(b) the Indemnified Party has been advised by legal counsel shall have reasonably concluded that a reasonable likelihood exists of there may be a conflict of interest between the Indemnifying Party and the Indemnified Party. If Party in the conduct of the defense of such action; or
(c) the Indemnifying Party shall control not, in fact, have employed independent counsel reasonably satisfactory to the Indemnified Party, to assume the defense of any such claim, action and shall have been so notified by the Indemnified Party; or
(d) the Indemnified Party shall have reasonably concluded and specifically notified the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheld) before entering into any settlement of a claim or ceasing to defend such claim, if pursuant to or as a result of such settlement or cessation, 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 obligations with respect to such claim, without prejudice.either:
Appears in 1 contract
Samples: Development Agreement
Defense of Claims. (a) If a party hereto seeks any Member receives notice of the assertion of any claim with respect to which indemnification is to be sought under ----------------- this Section 8.01Operating Agreement, such party the Member seeking indemnification (the "Indemnified PartyIndemnitee") shall give written ------------ ----------------- notice to notify the other party from whom the Indemnitee is seeking indemnification (the "Indemnifying Party") within ten (10) days after receiving written ------------------ the Indemnitee's receipt of notice of such claim. Such notice shall describe the nature of the claim in reasonable detail and shall indicate the estimated amount, if practicable, of the potential loss that has been or may be sustained by the Indemnitee. If the claim involves the Customer or any action, lawsuit, proceeding, investigation Person that is not a Member or other claim against it an Affiliate of a Member (if by a third party) or discovering the liability, obligation or facts giving rise to such claim for indemnification, describing the claim"Third Party Claim"), the amount thereof (if known Indemnifying Party will have the right to participate in or, by giving written notice to the Indemnitee, to elect to assume the defense of such Third Party Claim at such Indemnifying Party's expense and quantifiable)by such Indemnifying Party's own counsel, and the basis thereof; provided that the -------- failure counsel for the Indemnifying Party who shall conduct the defense of such Third Party Claim shall be reasonably satisfactory to so notify the Indemnitee. The Indemnitee shall cooperate in good faith in such defense of Third Party Claims at such Indemnitee's own expense. If an Indemnifying Party elects not to assume the defense of any Third Party Claim, the Indemnitee may compromise or settle such Third Party Claim over the objection of the Indemnifying Party, which settlement or compromise shall conclusively establish the Indemnifying Party's liability pursuant to this Agreement.
(b) If, within thirty (30) 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 14.4(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 shall not relieve fail to take reasonable steps necessary to diligently defend such Third Party Claim within thirty (30) days after receiving notice from the Indemnitee that the Indemnitee believes the Indemnifying Party of its or his obligations hereunder except has failed to the extent take such failure shall have prejudiced the Indemnifying Party. In that regard, if any 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 to indemnity pursuant to this Section 8.01steps, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto Indemnitee may assume its own defense and the Indemnifying Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim liable for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:all reasonable expenses thereof.
(ic) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall obtain Without the prior written consent of the Indemnified Indemnitee, the Indemnifying Party (which shall not be unreasonably withheld) before entering enter into any settlement of any Third Party Claim which would lead to liability or create any financial, operating or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder. If a claim firm offer is made to settle a Third Party Claim without leading to liability or ceasing the creation of a financial, operating 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, then the Indemnifying Party shall give written notice to the Indemnitee to that effect, together with assurances reasonably satisfactory to the Indemnitee of the Indemnifying Party's ability to pay or perform such settlement. If the Indemnitee fails to consent to such firm offer within fifteen (15) days after its receipt of such notice and assurance, 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.
(d) If the amount of any indemnified loss, at any time after 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, if pursuant recovery, settlement or payment by, from or against any other entity, the amount of such reduction (up to the amount of the prior indemnity payment), less any costs, expenses or premiums incurred in connection therewith (together with interest thereon from the date of payment of such recovery at the publicly announced prime rate then in effect of Citibank, N.A. or its successor) shall promptly be repaid by the Indemnitee to the Indemnifying Party.
(e) A failure to give timely notice as provided in this Section 14.4 shall not affect the rights or obligations of any Member hereunder except if, and only to the extent that, as a result of such settlement or cessationfailure, injunction or other equitable relief will be imposed against the Indemnified Party or if Member which was entitled to receive such settlement does not expressly unconditionally release the Indemnified Party from all liabilities and obligations with respect to notice was actually prejudiced as a result of such claim, without prejudicefailure.
Appears in 1 contract
Defense of Claims. (a) If any Indemnified Party 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 hereto seeks Party to this Agreement or any representative of a Party to this Agreement (a “Third Party Claim”) with respect to which indemnification under ----------------- this Section 8.01, such party (the "Indemnified Party") shall give written ------------ ----------------- notice is to the other party (the "be sought from an 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 (if known and quantifiable), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party shall not relieve 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 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify give such Indemnifying Party reasonably prompt written notice thereof, but in any event such notice shall not be given later than thirty (30) calendar days after the Indemnified Party’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 has been or may be sustained by the Indemnified Party. The Indemnifying Party will have the right to participate in or, by giving written notice to the Indemnified Party, 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 (i) the counsel for the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party who shall be entitled to participate in conduct the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) Third Party Claim shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified PartyParty and (ii) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification provides the Indemnified Party with evidence acceptable to the Indemnified Party for all Losses relating to such claim; and
(ii) furnish the Indemnified Party with reasonable evidence that the Indemnifying Party is will have sufficient financial resources to defend against the Third Party Claim and will be able fulfill its indemnification obligations hereunder. The Indemnified Party shall cooperate in good faith in such defense at such Indemnified Party’s own expense. If an Indemnifying Party elects not to satisfy assume the defense of any Third Party Claim, the Indemnified Party may compromise or settle such liability; and provided further that Third Party Claim over the objection of the Indemnifying Party, which settlement or compromise shall conclusively establish the Indemnifying Party’s Liability pursuant to this Agreement.
(b) (i) If, within 20 calendar days after an Indemnified Party provides written notice to the Indemnifying Party shall not have of any Third Party Claims, the right Indemnified Party receives written notice from the Indemnifying Party that such Indemnifying Party has elected to -------- ------- assume control the defense of such defense and shall pay Third Party Claim as provided in this Section 7.3, the fees and Indemnifying Party will not be liable for any legal expenses of counsel retained subsequently incurred by the Indemnified Party, if Party in connection with the claim which the Indemnifying Party seeks to assume control defense thereof (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If unless the Indemnifying Party is permitted also a party to assume such Proceeding and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party determines in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall good faith that joint representation would be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of inappropriate based on a conflict of interest between the Indemnifying Party and the Indemnified Party. If , in which case the Indemnified Party shall have the right to engage not more than one firm as its own counsel, the fees and expenses of which shall be paid by the Indemnifying Party); provided, however, that if the Indemnifying Party shall control fail to take reasonable steps necessary to defend diligently such Third Party Claim within 20 calendar days after receiving notice from the Indemnified Party that the Indemnified Party believes the Indemnifying Party has failed to take such steps, the Indemnified Party may assume its own defense of any such claim, and the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheld) before entering into any settlement of a claim or ceasing to defend such claim, if pursuant to or as a result of such settlement or cessation, 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 liable for all liabilities and obligations with respect to such claim, without prejudicereasonable expenses thereof.
Appears in 1 contract
Samples: Contribution Agreement (Mid-Con Energy Partners, LP)
Defense of Claims. If All rights of a party hereto seeks Party to indemnification under ----------------- this Article IX shall be asserted and resolved as follows:
(a) Promptly after receipt by a Party entitled to indemnification under Section 8.019.1 or Section 9.2 (an “Indemnified Party”) of notice of any pending or threatened claim, such party (the "Indemnified Party") Party shall give written ------------ ----------------- notice to the other party Party or Parties to whom the Indemnified Party is entitled to look for indemnification (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 (if known and quantifiable), and the basis commencement thereof; provided that the -------- failure so to so notify the Indemnifying Party shall not relieve it of any liability that it may have to the Indemnifying Indemnified Party of its or his obligations hereunder hereunder, except to the extent such failure shall have prejudiced that the Indemnifying Party. Party demonstrates that it is materially prejudiced thereby.
(b) In that regard, if case any action, lawsuit, proceeding, investigation or other claim shall be brought or asserted by any third party which, if adversely determined, would entitle the against an Indemnified Party and it shall give notice to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writingcommencement thereof, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in therein and, if it so desires, to assume the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead thereof with counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which Party and, after notice from the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating of its election to such claim; and
(ii) furnish assume the Indemnified Party with reasonable evidence that the Indemnifying Party is and will be able to satisfy any such liability; and defense thereof, except as provided further that below the Indemnifying Party shall not have be liable to such Indemnified Party under this Article IX for any fees of other counsel or any other expenses, in each case subsequently incurred by such Indemnified Party in connection with the right to -------- ------- assume control defense thereof, other than reasonable costs of such defense and shall pay the fees and expenses of counsel retained by the Indemnified investigation. Notwithstanding an Indemnifying Party, if the claim which the Indemnifying Party seeks ’s election to assume control (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do soof a claim, the Indemnified Party shall have the right to employ separate counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereofof such claim, but and the fees Indemnifying Party shall bear the reasonable fees, costs and expenses of such separate counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless if: (ai) the employment thereof has been specifically authorized by the Indemnifying Party in writingactual or potential defendants in, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between targets of, any such claim include both the Indemnifying Party and the Indemnified Party. If , and the Indemnified Party shall have reasonably concluded, based on an opinion of its outside legal counsel, that there may be legal defenses available to it which are different from or additional to those available to the Indemnifying Party and would make representation of both parties by the same counsel inappropriate (in which case the Indemnifying Party shall control not have the right to assume the defense of any such claimclaim on the Indemnified Party’s behalf), (ii) the Indemnifying Party shall obtain have abandoned or failed to diligently pursue the prior written consent defense of such claim within a reasonable time after notice of the institution of such claim, or (iii) the Indemnifying Party shall authorize in writing the Indemnified Party to employ separate counsel at the Indemnifying Party’s expense. If an Indemnifying Party assumes the defense of a claim, the Indemnified Party shall provide all reasonable cooperation to the Indemnifying Party in its defense of such claim, including the retention of and provision to the Indemnifying Party of documentation relevant to such claim (including copies of all relevant notices, complaints, pleadings and demands) and, upon the request of the Indemnifying Party, making employees available on a mutually convenient basis. If an Indemnifying Party assumes the defense of a claim, no compromise or settlement thereof may be effected by the Indemnifying Party without the Indemnified Party’s written consent (which shall not be unreasonably withheldwithheld or delayed); provided that the Indemnifying Party may compromise or settle such claim without the Indemnified Party’s consent so long as (a) before entering into any settlement there is a release of a claim or ceasing to defend such claim, if pursuant to or as a result all liability 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 obligations with respect to such claim and (b) the sole relief provided is monetary damages that are to be paid in full by the Indemnifying Party. In no event shall the Indemnified Party admit any liability with respect to, or settle, compromise or discharge, any claim as to which such Indemnified Party has sought or may seek indemnification under this Agreement without the Indemnifying Party’s prior written consent (which shall not be unreasonably withheld or delayed).
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder which does not involve a claim being asserted by a third party, the Indemnified Party shall as promptly as is practical notify the Indemnifying Party of such claim, without prejudicedescribing such claim and the amount thereof (if known). The failure to give any such notice shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that such failure results in material prejudice to the Indemnifying Party. Upon the giving of such written notice as aforesaid, the Indemnified Party and the Indemnifying Party shall negotiate in good faith for twenty (20) Business Days to resolve such claim. If the claim is not resolved by the end of such period, the Indemnified Party shall have the right to commence legal proceedings for the enforcement of its rights under Section 9.1 or Section 9.2.
Appears in 1 contract
Defense of Claims. If a party hereto seeks indemnification under ----------------- this Section 8.01, such party (the "Indemnified Party") shall give written ------------ ----------------- notice In connection with any claim giving rise to the other party (the "Indemnifying Party") after receiving written ------------------ notice indemnity hereunder resulting from or arising out of any action, lawsuit, proceeding, investigation claim or other claim against it (if legal proceeding by a third party) or discovering the liability, obligation or facts giving rise to such claim for indemnification, describing the claim, the amount thereof (if known and quantifiable), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party shall not relieve 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 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify give the Indemnifying Party of the same in writing, specifying in detail the basis prompt notice of such claim and the facts pertaining thereto Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (1) the third-party claim does not seek an injunction or other equitable relief against or adversely affecting a Indemnified Party, (2) the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party against any Losses that may result from the third-party claim, and (3) the Indemnifying Party agrees in writing not to settle such claim or proceeding without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or the Indemnifying Party fails to take reasonable steps necessary to defend diligently the claim after receiving notice from the Indemnified Party that it believes that the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; and provided further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnified Party shall be reimbursed by the Indemnifying Party on a monthly basis for reasonable fees and expenses of counsel retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such actionclaim, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification with its counsel at its own expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted thereafter seeks to assume and control question the defense and elects to do so, manner in which the Indemnified Party shall have defended such third party claim or the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, amount or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense nature of any such claimsettlement, the Indemnifying Party shall obtain have the prior written consent burden to prove, by a preponderance of the evidence, that the Indemnified Party (which shall did not defend or settle such third-party claim in a reasonable, prudent manner. The parties agree to render, without compensation, to each other such assistance as they may reasonably require of each other and to cooperate in good faith with each other, including providing such documents and records as may be unreasonably withheld) before entering into any settlement of a claim or ceasing to defend such claim, if pursuant to or as a result pertinent and the time and attention of such settlement personnel as may reasonably be necessary, in order to ensure the proper and adequate defense of any action , suit or cessationproceeding, injunction whether 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 obligations with respect subject to such claim, without prejudiceindemnification hereunder.
Appears in 1 contract
Defense of Claims. If a party hereto seeks indemnification under ----------------- this Section 8.01, such party Within thirty (the "Indemnified Party"30) shall give written ------------ ----------------- notice to the other party (the "Indemnifying Party") days after receiving written ------------------ notice delivery of an Indemnification Notice indicating any action, lawsuit, proceeding, investigation suit or other claim against it (if proceeding brought by a third partyparty against the Indemnified Party that is based upon, or includes assertions relating to, any item listed in Sections
15.1 (a), 15.2(a) or discovering the liability15.3 (each, obligation or facts giving rise to such claim for indemnification, describing the claim, the amount thereof (if known and quantifiablea “Third Party Claim”), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its or his obligations hereunder except may, upon written notice thereof to the extent such failure shall have prejudiced the Indemnifying Party. In that regardapplicable Indemnified Parties, if any 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party assume control of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise Third Party Claim with counsel reasonably satisfactory to the applicable Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to Parties. If the Indemnifying -------- Party's right to Party does not assume control of such defense, it must first:
(i) enter into an agreement then the applicable Indemnified Parties shall control such defense with the Indemnified Party (in form costs and substance reasonably satisfactory to expenses incurred by the Indemnified Party) pursuant Parties in connection with such defense, including reasonably attorneys’ fees, other professionals’ fees and court or arbitration costs, to be included in the Damages for which the Indemnified Parties may seek indemnification under this Section 15 whether or not such Third Party Claim is successful. The party not controlling such defense may participate therein at its own expense; provided that if the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 have the right to -------- ------- assume assumes control of such defense and shall pay the counsel selected by the Indemnifying Party concludes that such counsel has a conflict of interest due to the existence of conflicting or different defenses available to the Indemnifying Parties and the Indemnified Parties with respect to such Third Party Claim, then the reasonable fees and expenses of one firm of separate counsel retained by for all of the applicable Indemnified Party, if the claim which the Indemnifying Party seeks to assume control (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would Parties shall be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed paid by the Indemnifying Party in any Party. The party controlling such action defense shall keep the other party advised of the status of such action, suit or proceeding and to participate in the defense thereofthereof (including the provision of copies of all pleadings, but the fees motions and expenses of such counsel employed communications) and shall consider in good faith recommendations made by the other party with respect thereto. The applicable Indemnified Party Parties shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists not agree to any settlement of a conflict of interest between the Indemnifying Third Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall obtain Claim without the prior written consent of the Indemnified Party (Indemnifying Parties, which consent shall not be unreasonably withheld) before entering into withheld or delayed. The Indemnifying Parties shall not agree to any settlement of a claim Third Party Claim without the prior written consent of the applicable Indemnified Parties, which consent shall not be unreasonably withheld or ceasing 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 obligations with respect to such claim, without prejudicedelayed.
Appears in 1 contract
Samples: Merger Agreement (Pharmos Corp)
Defense of Claims. (a) If any Claim by a third party arises after the Closing Date for which MedSource Indemnitors may be liable under the terms of this Agreement, then MedSource Indemnitees will notify MedSource Indemnitors in accordance with the provisions of this Section 7.5, and will give such MedSource Indemnitors a ----------- reasonable opportunity: (i) to conduct any proceedings or negotiations in connection with the Claim and necessary or appropriate to defend such MedSource Indemnitees; (ii) to take all other steps or proceedings required to settle or defend any Claim; and (iii) to employ counsel reasonably acceptable to such MedSource Indemnitees to contest any Claim in the name of such MedSource Indemnitees or otherwise. Subject to Section 7.5(b), the expenses of all ------------- proceedings, contests or lawsuits with respect to the Claims will be borne by MedSource Indemnitors.
(b) If any Claim by a third party arises after the Closing Date for which Seller Indemnitors may be liable under the terms of this Agreement, then the Seller Indemnitee will notify the Seller Indemnitors in accordance with the provisions of this Section 7.5, and will give such Seller Indemnitors a ----------- reasonable opportunity: (i) to conduct any proceedings or negotiations in connection with the Claim and necessary or appropriate to defend the such Seller Indemnitees; (ii) to take all other steps or proceedings required to settle or defend any Claim; and (iii) to employ counsel reasonably acceptable to such Seller Indemnitees to contest any Claim in the name of such Seller Indemnitees or otherwise. Subject to Section 7.5(b), the expenses of all ------------- proceedings, contests or lawsuits with respect to the Claims will be borne by Seller Indemnitors.
(c) Notwithstanding Section 7.5(a) if (i) a MedSource Indemnitee or a ------------- Seller Indemnitee determines in good faith that there is a reasonable probability that such a Claim may adversely affect it or its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, or (ii) the Claim seeks injunctive or similar relief, or (iii) it is a Claim brought or initiated by a Governmental Authority, such Indemnitee may, by notice to MedSource Indemnitor or the Seller Indemnitor, as applicable, assume the exclusive right to defend, compromise or settle such Claim, and such Indemnitor shall be obligated to reimburse the legal fees, costs and expenses of that defense.
(d) If MedSource Indemnitor or Seller Indemnitor does not assume the defense of, or if after so assuming such Indemnitor fails to defend, any such Claims, then MedSource Indemnitees or Seller Indemnitees, as applicable may defend against any Claims in the manner they may deem appropriate and such Indemnitees may settle any Claims on the terms they deem appropriate, and such Indemnitor will promptly reimburse such Indemnitees for the amount of all expenses, legal and otherwise, reasonably and necessarily incurred by such Indemnitees in connection with the defense against and settlement of any Claims. If no settlement of any Claims are made, such Indemnitor will satisfy any judgment rendered with respect to any Claim, before such Indemnitees are required to do so, and pay all expenses, legal or otherwise, reasonably and necessarily incurred by such Indemnitees in the defense of any claim or action.
(e) If a party hereto seeks judgment is rendered against any MedSource Indemnitees or Seller Indemnitees in any Claim covered by the indemnification under ----------------- this Section 8.01Agreement, or any Lien in respect of any judgment attaches to any of the assets of any such Indemnitees, MedSource Indemnitor or Seller Indemnitor, as applicable, will immediately upon any entry or attachment pay the relevant judgment in full or discharge the relevant Lien unless, at the expense and direction of such Indemnitor, an appeal is taken under which the execution of the judgment or satisfaction of the Lien is stayed. If and when a final judgment is rendered in any action, such party Indemnitor will forthwith pay any judgment or discharge any Lien before any of such Indemnitees is compelled to do so.
(f) Any notice required to be given to a MedSource Indemnitor or a Seller Indemnitor pursuant to Section 7.5(a) shall be given no later than the latter -------------- of: (i) the end of the first half of the term within which an answer or other response to the Claim is required to be made (the "Indemnified PartyAnswer Period") and (ii) two (2) Business Days after receipt by a MedSource Indemnitee or a Seller Indemnitee, as applicable, of notice of the action. Such Indemnitor shall give written ------------ ----------------- assume the defense of any Claim, if at all, by notice to such Indemnitees no later than the other party earlier of: (i) the "Indemnifying Party"end of the second third of the Answer Period and (ii) after receiving written ------------------ notice of any action, lawsuit, proceeding, investigation three (3) Business Days prior to the date by which an answer or other claim against it (if by a third party) or discovering response to the liability, obligation or facts giving rise Claim is required to such claim for indemnification, describing the claim, the amount thereof (if known and quantifiable), and the basis thereof; provided that the -------- be made. Such Indemnitor's failure to so notify such Indemnitees within the Indemnifying Party specified time shall be conclusively deemed an election by such Indemnitor not to assume such defense. Any failure by such Indemnitees to give the requisite notice within the time specified in this Section 7.5(f) -------------- will not relieve an Indemnitor of the Indemnifying Party of its or his obligations hereunder obligation to indemnify Indemnitees pursuant to this Article VII except to the extent such failure that the defense of any Claim is ----------- materially prejudiced by the delay.
(g) The Indemnitor or the Indemnitee, as appropriate, shall have prejudiced the Indemnifying Party. In that regard, if any 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled right to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise any Claim related to a loss that is the Indemnified Party's claim for subject of indemnification at its expense, sole cost and at its option (subject to expense and the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form cost and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which participation shall not be unreasonably withheld) before entering into any settlement of a claim or ceasing to defend such claim, if pursuant to or as a result of such settlement or cessation, 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 obligations with respect to such claim, without prejudiceloss that is indemnified.
Appears in 1 contract
Samples: Asset Purchase Agreement (Medsource Technologies Inc)
Defense of Claims. If (a) Promptly after receipt by Buyer, on the one hand, or Seller, on the other hand (in any such case, the "Beneficiary"), of notice of any claim or potential claim or the commencement of any action by any person that is not a party hereto seeks to this Agreement (a "Third Party Claim"), which could give rise to a right to indemnification under ----------------- this pursuant to Section 8.0110.1 or Section 10.2, such the Beneficiary shall give the party who may become obligated to provide indemnification hereunder (the "Indemnified PartyIndemnitor") written notice describing the Third Party Claim in reasonable detail. In the case of the commencement of an action, notice shall give written ------------ ----------------- notice be given to the other party Indemnitor not later than the later of (i) ten (10) days after receipt of the "Indemnifying Party"complaint or pleading by the Beneficiary and (ii) after receiving written ------------------ fifteen (15) days prior to the date on which an answer to the complaint or pleading is required to avoid a default judgment, taking into consideration any applicable extensions of such answer date. No delay on the part of the Beneficiary in notifying any Indemnitor shall relieve the Indemnitor from any obligation hereunder unless (and then solely to the extent) the Indemnitor thereby is prejudiced.
(b) If the Indemnitor acknowledges in writing that it would be required to indemnify the Beneficiary against a Third Party Claim which is the subject of a notice provided pursuant to subsection 10.4(a), then the Indemnitor shall assume the defense of such Third Party Claim, at the Indemnitor's own expense and by its own counsel (who shall be reasonably satisfactory to the Beneficiary). The Indemnitor shall not be liable for any action, lawsuit, proceeding, investigation or other claim against it (if expenses subsequently incurred by a third party) or discovering the liability, obligation or facts giving rise Beneficiary in connection with the defense thereof so long as the Indemnitor has taken reasonable steps necessary to defend diligently such claim for indemnification, describing Third Party Claim. If the claimIndemnitor fails to take reasonable steps to defend diligently such Third Party Claim, the amount thereof (if known and quantifiable)Beneficiary may assume its own defense, and the basis thereof; provided that Indemnitor shall be liable for all reasonable costs or expenses paid or incurred in connection therewith by the -------- failure to so notify Beneficiary. The Beneficiary shall cooperate fully with, and provide appropriate documentation as reasonably requested by, the Indemnifying Indemnitor and its counsel in the compromise of, or defense against, any such Third Party shall not relieve Claim. In any event, the Indemnifying Party of its or his obligations hereunder except to the extent such failure Beneficiary shall have prejudiced the Indemnifying Party. In that regardright, if any actionat its own expense, lawsuit, proceeding, investigation or other claim shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Party to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:Third Party Claim.
(ic) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall obtain Without the prior written consent of the Indemnified Party (which Beneficiary, the Indemnitor shall not be unreasonably withheld) before entering 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 Beneficiary for which the Beneficiary is not entitled to indemnification hereunder. If a claim firm offer is made to settle a Third Party Claim without leading to such liability or ceasing the creation of such financial or other obligation and the Indemnitor desires to accept such offer, the Indemnitor shall give written notice to the Beneficiary to that effect. If the Beneficiary fails to consent to such offer within ten calendar days after its receipt of the Indemnitor's notice, the Beneficiary may continue to contest or defend such claimThird Party Claim and, if pursuant in such event, the maximum liability of the Indemnitor as to such Third Party Claim shall not exceed the amount of such settlement offer. If the Beneficiary thereafter adjusts, settles or compromises any such Third Party Claim without the prior written consent of the Indemnitor, the Beneficiary shall thereby have waived any right to indemnity therefor by the Indemnitor.
(d) Any claim by a Beneficiary on account of Damages that does not result from a Third Party Claim (a "Direct Claim") shall be asserted by giving the Indemnitor reasonably prompt written notice thereof. The remedies available to the Beneficiary for any Direct Claim shall remain subject to the applicable terms and provisions of this Article X (including, without limitation, Section 10.3 hereof).
(e) A failure to give timely notice or to include any specified information in any notice as provided in Section 10.4 will not affect the rights or obligations of any party hereunder except and only to the extent that, as a result of such settlement failure, any party which was entitled to receive such notice was deprived of its right to recover any payment under its applicable insurance coverage or cessation, injunction or other equitable relief will be imposed against the Indemnified Party or if was otherwise damaged as a result of such settlement does not expressly unconditionally release the Indemnified Party from all liabilities and obligations with respect to such claim, without prejudicefailure.
Appears in 1 contract
Defense of Claims. If a Whenever any claim shall arise for indemnification hereunder, the party hereto seeks entitled to indemnification under ----------------- this Section 8.01, such party (the "Indemnified Party") shall give written ------------ ----------------- notice to promptly notify the other party (the "Indemnifying Party") after receiving written ------------------ notice of any actionthe claim and, 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 claimwhen known, the amount thereof (if known and quantifiable), and facts constituting the basis thereof; provided that for such claim. If the -------- failure Indemnified Party fails to so notify provide the Indemnifying Party shall not relieve with such notice prior to the time at which the Indemnifying Party's ability to defend against such claim is irrevocably prejudiced by the failure to provide such notice, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such portion of its or his obligations hereunder except the claim as to the extent such failure shall have prejudiced which the Indemnifying Party's ability to defend has been prejudiced by such failure. In that regardThe Indemnifying Party may, if any action, lawsuit, proceeding, investigation or other claim shall be brought or asserted by any third party which, if adversely determined, would entitle upon written notice to the Indemnified Party within 30 calendar days of receipt of the notice specified in the first sentence of this para graph, assume the defense of any such claim if the Indemnifying Party acknowledges to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject right to indemnity pursuant hereto in respect of the limitations set forth below) shall be entitled to appoint lead counsel entirety of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control assumes the defense of any such claim, the Indemnifying Party shall obtain select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claim, shall take all steps necessary in the defense or settlement thereof and shall at all times diligently and promptly pursue the resolution thereof. If the Indemnifying Party shall have assumed the defense of any claim in accordance with this Section 7.3, the Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any such claim, without the prior written consent of the Indemnified Party; PROVIDED, HOWEVER, that the Indemnifying Party (which shall not pay or cause to be unreasonably withheld) before entering into any settlement of a claim or ceasing to defend such claim, if pursuant to or as a result paid all amounts arising out of such settlement or cessationjudgment concurrently with the effectiveness thereof; PROVIDED, injunction or other equitable relief will FURTHER, that the Indemnifying Party shall not be imposed against authorized to encumber any of the assets of the Indemnified Party or if to agree to any restriction that would apply to the Indemnified Party, or to any other Buyer or Seller Indemnitee, as applicable, or to its conduct of business or to any other Buyer or Seller Indemnitee, as applicable, or to their conduct of business; AND PROVIDED, FURTHER, that a condition to any such settlement does not expressly unconditionally shall be a complete release of the Indemnified Party from all liabilities and obligations with respect to such claim. The Indem nified Party shall be entitled to participate in (but not control) the defense of any such action, without prejudicewith its own counsel and at its own expense. The Indemnified Party shall, and shall cause each of its Affiliates, officers, employees, consultants and agents and each other Buyer or Seller Indemnitee, as applicable, to, cooperate fully with the Indemnifying Party in the defense of any claim pursuant to this Section 7.3. If the Indemnifying Party does not assume the defense of any claim resulting therefrom in accordance with the terms of this Section 7.3, the Indemnified Party may defend against such claim in such manner as it may deem appropriate, including settling such claim after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate.
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Defense of Claims. (a) If any Indemnitee receives notice of the assertion of any claim or of the commencement of any action or proceeding by any Third Party (a party hereto seeks “Third Party Claim”) against such Indemnitee, with respect to which an Indemnifying Party is obligated to provide indemnification under ----------------- this Section 8.01Agreement, the Indemnitee will give such party Indemnifying Party reasonably prompt written notice thereof, but in any event not later than ten (the "Indemnified Party"10) shall give written ------------ ----------------- notice to the other party (the "Indemnifying Party") calendar days after receiving written ------------------ receipt of notice of any actionsuch Third Party Claim; provided, lawsuithowever, 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 (if known and quantifiable), and the basis thereof; provided that the -------- failure of the Indemnitee to so notify the Indemnifying Party shall not only relieve the Indemnifying Party of from its or his obligations hereunder except obligation to indemnify the Indemnitee pursuant to this Article XV to the extent such failure shall have prejudiced the Indemnifying Party. In that regard, if any 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party is materially prejudiced by such failure (whether as a result of the same in writingforfeiture of substantive rights or defenses or otherwise). Upon receipt of notification of a Third Party Claim, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in the defense of such actionentitled, lawsuit, proceeding, investigation or other claim giving rise upon written notice to the Indemnified Party's claim for indemnification at its expenseIndemnitee, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defensethe investigation and defense thereof; provided, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) furnish the Indemnified Party with reasonable evidence that the Indemnifying Party is and will be able to satisfy any such liability; and provided further however, that the Indemnifying Party shall not have the right to -------- ------- assume control of such the defense unless and shall pay the fees and expenses of counsel retained by the Indemnified Party, if the claim which until the Indemnifying Party seeks agrees in writing to assume control (A) seeks non-monetary reliefindemnify the Indemnitee with respect to such Third Party Claim, (B) involves criminal subject to the applicable limitations set forth herein. Whether or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that not the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted elects to assume the investigation and control the defense and elects to do soof any Third Party Claim, the Indemnified Party Indemnitee shall have the right to employ separate counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the investigation and defense thereof; provided, but however, that the Indemnitee shall pay the fees and expenses disbursements of such separate counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (ai) the employment thereof of such separate counsel has been specifically authorized in writing by the Indemnifying Party, (ii) the Indemnifying Party in writinghas failed to assume the defense of such Third Party Claim within a reasonable time after receipt of notice thereof, or (biii) the Indemnified Party named parties to the proceeding in which such claim, demand, action or cause of action has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between asserted include both the Indemnifying Party and such Indemnitee and, in the Indemnified reasonable judgment of counsel to such Indemnitee, there exists one or more defenses that may be available to the Indemnitee that are not available to or are in conflict with those available to the Indemnifying Party. If Notwithstanding the Indemnifying Party shall control the defense of any such claimforegoing, the Indemnifying Party shall obtain not be liable for the fees and disbursements of more than one counsel for all Indemnified Parties 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 Indemnified Indemnitee, the Indemnifying Party (which shall will not be unreasonably withheld) before entering 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. If a claim 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 ceasing defenses against the Indemnitee, the Indemnitee may continue to defend contest such claim, if pursuant 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 (A) 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 as a result (B) the aggregate Indemnifiable Losses 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 obligations 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, without prejudicebut 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 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). 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 so respond within such thirty (30) 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 this Article XV.
(c) 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 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 (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 effect 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.
(d) The Indemnifying Party shall, upon presentation of appropriate invoices containing reasonable detail, reimburse the Indemnitee for all expenses incurred in connection with any Third Party Claim, as such expenses are incurred by such Indemnitee; provided, however, that such expenses shall be refunded to the extent that such expenses arose primarily from the gross negligence, bad faith or willful misconduct of such Indemnitee.
Appears in 1 contract
Defense of Claims. If In connection with any claim which may give rise to indemnity under this ARTICLE VIII resulting from or arising out of any claim or Proceeding against an Indemnitee by a Person that is not a party hereto seeks indemnification under ----------------- this Section 8.01hereto, the Indemnifying Party may (unless such party (the "Indemnified Party") shall give Indemnitee elects not to seek indemnity hereunder for such claim), upon written ------------ ----------------- notice sent at any time to the other party (relevant Indemnitee, assume the "Indemnifying Party") after receiving written ------------------ notice defense of any action, lawsuit, proceeding, investigation such claim or other claim against it (Proceeding if by a third party) or discovering the liability, obligation or facts giving rise Indemnifying Party with respect to such claim for indemnificationor Proceeding acknowledges to the Indemnitee the Indemnitee's right to indemnity pursuant hereto in respect of the entirety of such claim (as such claim may have been modified through written agreement of the parties or arbitration hereunder) and provide assurances, describing reasonably satisfactory to such Indemnitee, that the claimIndemnifying Party will be financially able to satisfy such claim in full if such claim or Proceeding is decided adversely. If the Indemnifying Party assumes the defense of any such claim or Proceeding, the amount Indemnifying Party shall select counsel reasonably acceptable to such Indemnitee to conduct the defense of such claim or Proceeding, shall take all steps reasonably necessary in the defense or settlement thereof (if known and quantifiable)shall at all times diligently and promptly pursue the resolution thereof. If the Indemnifying Party shall have assumed the defense of any claim or Proceeding in accordance with this SECTION 8.05, and the basis thereofIndemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any such claim or Proceeding, without the prior written consent of such Indemnitee; provided PROVIDED, HOWEVER, that the -------- failure Indemnifying Party shall pay or cause to so notify be paid all amounts arising out of such settlement or judgment either concurrently with the effectiveness thereof or shall obtain and deliver to such Indemnitees prior to the execution of such settlement a general release executed by the Person not a party hereto, which general release shall release such Indemnitee from any liability in such matter; PROVIDED, FURTHER, that the Indemnifying Party shall not relieve be authorized to encumber any of the Indemnifying Party assets of any Indemnitee or to agree to any restriction that would apply to any Indemnitee or to its or his obligations hereunder except conduct of business; and PROVIDED, FURTHER, that a condition to the extent any such failure shall have prejudiced the Indemnifying Party. In that regard, if any action, lawsuit, proceeding, investigation or other claim settlement shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Party to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis a complete release of such claim Indemnitee and the facts pertaining thereto its Affiliates, officers, employees, consultants and the Indemnifying Party agents with respect to such claim. Such Indemnitee shall be entitled to participate in (but not control) the defense of any such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at with its expense, own counsel and at its option (subject own expense. Each Indemnitee shall, and shall cause each of its Affiliates, officers, employees, consultants and agents to, cooperate fully with the Indemnifying Party in the defense of any claim or Proceeding being defended by the Indemnifying Party pursuant to this SECTION 8.05. If the limitations set forth below) shall be entitled to appoint lead counsel Indemnifying Party does not assume the defense of any claim or Proceeding resulting therefrom in accordance with the terms of this SECTION 8.05, such defense with reputable counsel reasonably acceptable to Indemnitee may defend against such claim or Proceeding in such manner as it may deem appropriate, including settling such claim or Proceeding after giving notice of the Indemnified Party; provided that, as a condition precedent same to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 on such terms as such Indemnitee may deem appropriate. If the Indemnifying Party seeks to assume control (A) seeks non-monetary relief, (B) involves criminal question the manner in which such Indemnitee defended such claim or quasi-criminal allegations, (C) involves a claim to which Proceeding or the Indemnified Party reasonably believes an adverse determination would be detrimental to amount of or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense nature of any such claimsettlement, the Indemnifying Party shall obtain have the prior written consent burden to prove by a preponderance of the Indemnified Party (which shall evidence that such Indemnitee did not be unreasonably withheld) before entering into any settlement of a defend such claim or ceasing to defend such claim, if pursuant to or as Proceeding in 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 obligations with respect to such claim, without prejudicereasonably prudent manner.
Appears in 1 contract
Samples: Merger Agreement (Ticketmaster Online Citysearch Inc)
Defense of Claims. (a) If a party hereto seeks any Indemnitee receives notice of the assertion or commencement of any Third Party Claim against such Indemnitee with respect to which an Indemnifying Party is obligated to provide indemnification under ----------------- this Section 8.01Agreement, the Indemnitee will give such party (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 "Indemnified Party") shall give 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 will have the right to participate in or, by giving written notice to the other party (Indemnitee, to assume, the "defense of any Third Party Claim at such Indemnifying Party") after receiving written ------------------ notice of any action, lawsuit, proceeding, investigation or other claim against it 's own expense and by such Indemnifying Party's own counsel (if by a third party) or discovering reasonably satisfactory to the liability, obligation or facts giving rise to such claim for indemnification, describing the claim, the amount thereof (if known and quantifiableIndemnitee), and the basis thereof; provided that the -------- failure Indemnitee will cooperate in good faith in such defense.
(b) If, within ten calendar days after giving notice of a Third Party Claim to so notify an Indemnifying Party pursuant to Section 5.4(a), an Indemnitee receives written notice from the Indemnifying Party shall not relieve that the Indemnifying Party has elected to assume the defense of its or his obligations hereunder except to such Third Party Claim as provided in the extent such failure shall have prejudiced the Indemnifying Party. In that regardlast sentence of Section 5.4(a), if any 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of will not be liable for any legal expenses subsequently incurred by the same Indemnitee in writingconnection with the defense thereof; provided, specifying in detail however, that if the basis of Indemnifying Party fails to take reasonable steps necessary to defend diligently such claim and Third Party Claim within ten calendar days after receiving written notice from the facts pertaining thereto 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 will be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible liable for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 have the right to -------- ------- assume control of such defense and shall pay the fees and costs or expenses of counsel retained by the Indemnified Party, if the claim which the Indemnifying Party seeks to assume control (A) seeks non-monetary relief, (B) involves criminal paid or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defendincurred in connection therewith. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall obtain Without the prior written consent of the Indemnified Indemnitee, the Indemnifying Party (which shall will not be unreasonably withheld) before entering enter into any settlement of a claim any Third Party Claim which would lead to liability or ceasing to defend such claim, if pursuant to or as a result of such settlement or cessation, injunction create any financial or other equitable relief will be imposed against obligation on the Indemnified 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 if such settlement does the creation of a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not expressly unconditionally release entitled to indemnification hereunder and the Indemnified Indemnifying Party from all liabilities desires to accept and obligations with respect agree to such claimoffer, without prejudice.the Indemnifying Party will give written notice to the Indemnitee to
Appears in 1 contract
Defense of Claims. If (a) Should any claim, action or proceeding by or involving a third party hereto seeks indemnification arise after the Closing Date for which Seller or Buyer is liable under ----------------- the terms of this Section 8.01Agreement, the party which is entitled to be indemnified with respect to such party claim (the "Indemnified Party") shall give written ------------ ----------------- notice to notify the other party who is liable therefor under the terms hereof (the "Indemnifying Party") within a reasonable time 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, action or proceeding arises and is known to the amount thereof (if known and quantifiable)Indemnified Party, and the basis thereof; provided that the -------- failure to so notify if the Indemnifying Party shall not relieve the Indemnifying Party of admit in writing its or his obligations hereunder except to the extent such failure shall have prejudiced the Indemnifying Party. In that regard, if any 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 to indemnity pursuant to this Section 8.01indemnification obligation in respect thereof, the Indemnified Party shall ------------ promptly notify give the Indemnifying Party a reasonable opportunity:
(i) to take part in any examination of the same in writing, specifying in detail the basis relevant books and records of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense;
(ii) to conduct any proceedings or negotiations in connection therewith and necessary or appropriate to defend the Indemnified Party or prosecute any claim, and at its option action, counterclaim or other proceeding with respect thereto;
(subject iii) to the limitations set forth belowtake all other required steps or proceedings to settle or defend any such claim, action or proceeding; and
(iv) shall be entitled to appoint lead counsel of such defense with reputable employ counsel reasonably acceptable to the Indemnified Party to contest any such claim, action or proceeding in the name of the Indemnified Party; provided that, as 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 of any such claim or action, it shall give written notice to the Indemnified Party admitting 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 condition precedent response in less than 15 days after the notice is given to the Indemnifying -------- Party's right to assume control of such defense, in which event it must first:
(i) enter into an agreement with shall notify the Indemnified Party (in form at least five days prior to such reasonably required response date), and substance the Indemnifying Party shall thereafter assume the defense of any such claim or liability, through counsel reasonably satisfactory to the Indemnified Party) pursuant to which ; provided that the Indemnified Party may participate in such defense at its own expense but, in any event, the Indemnifying Party agrees shall have the right, as long as it is actively defending any claim or action, to be fully responsible for control such defense. The Indemnified Party shall afford the Indemnifying Party's counsel and other authorized representatives reasonable access during normal business hours to all Losses relating to such claims relevant books, records, offices and that it will provide full indemnification other facilities and properties of the Indemnified Party, and to the Indemnified Party for all Losses relating to such claim; and
(ii) furnish personnel of the Indemnified Party Party, and shall otherwise use all reasonable efforts to cooperate with reasonable evidence that the Indemnifying Party, such counsel and such other authorized representatives in connection with the exercise of the rights of the Indemnifying Party is and will be able pursuant to satisfy any such liability; and provided further that this Section 8.07.
(b) If the Indemnifying Party shall not have assume the right defense of, or if after so assuming it shall fail to -------- ------- assume control actively defend, any such claim or action, the Indemnified Party 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 litigation on such terms as it may deem appropriate, and the Indemnifying Party promptly shall reimburse the Indemnified Party for the amount of such defense settlement and shall pay the fees for all expenses, legal and expenses of counsel retained otherwise, reasonably and necessarily incurred by the Indemnified PartyParty in connection with the defense against and settlement of such claim or action. If no settlement of such claim or litigation is made, if the claim which the Indemnifying Party seeks shall satisfy any judgment rendered with respect to assume control (A) seeks non-monetary reliefsuch claim or in such action, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which before the Indemnified Party is required to do so, and pay all expenses, legal or otherwise, reasonably believes an adverse determination would be detrimental to or injure and necessarily incurred by the Indemnified Party's reputation Party in the defense against such claim or future business prospectslitigation.
(c) If a judgment is rendered against the Indemnified Party in any action covered by the indemnification provisions hereof, or (D) involves a claim which, upon petition by any lien attaches to any of the assets of the Indemnified Party, the appropriate court rules that Indemnifying Party immediately upon such entry or attachment shall pay such judgment in full or discharge such lien unless, at the Indemnifying Party failed Party's expense and direction, an appeal is taken under which the execution of the judgment or satisfaction of the lien is failing to vigorously prosecute or defendstayed. If the Indemnifying Party and when a final judgment is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party rendered in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any such claimaction, the Indemnifying Party shall obtain the prior written consent of forthwith pay such judgment or discharge such lien before the Indemnified Party (which shall not be unreasonably withheld) before entering into any settlement of a claim or ceasing is compelled 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 obligations with respect to such claim, without prejudicedo so.
Appears in 1 contract
Defense of Claims. If Upon receipt by Indemnitor of a party hereto seeks indemnification under ----------------- this Section 8.01, such party (the "Indemnified Party") shall give written ------------ ----------------- notice from Indemnitee with respect to the other party (the "Indemnifying Party") after receiving written ------------------ notice any claim of any action, lawsuit, proceeding, investigation or other claim against it (if by a third partyparty against Indemnitee, and acknowledgment by Indemnitor (whether after resolution of a dispute or otherwise) or discovering the liability, obligation or facts giving rise of Indemnitee's right to indemnification hereunder with respect to such claim for indemnification, describing the claim, the amount thereof (if known and quantifiable), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party Indemnitor shall not relieve 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 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in assume the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead with counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) furnish the Indemnified Party Indemnitee, 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 have the right to -------- ------- assume control of such defense and shall pay the fees and expenses of such counsel retained to be paid by Indemnitor, and Indemnitee shall cooperate to the Indemnified Partyextent reasonably requested by Indemnitor in defense or prosecution thereof and shall furnish such records, if the claim which the Indemnifying Party seeks information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by Indemnitor in connection therewith. If Indemnitor shall acknowledge Indemnitee's right to indemnification and elect to assume control (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do soof such claim, the Indemnified Party Indemnitee shall have the right to employ its own counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereofcase, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified PartyIndemnitee. If the Indemnifying Party shall control Indemnitor has assumed the defense of any claim against Indemnitee, Indemnitor shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such claimsettlement requires Indemnitee to take, the Indemnifying Party or prohibits Indemnitee from taking, any action or purports to obligate Indemnitee, then Indemnitor shall obtain not settle such claim without the prior written consent of Indemnitee, not to be unreasonably withheld or delayed. If Indemnitor does not assume the Indemnified Party (which defense of a third party claim and disputes Indemnitee's right to indemnification, Indemnitee shall have the right to participate in the defense of such claim through counsel of its choice, at Indemnitor's expense; provided, however that Indemnitiee shall not be permitted to resolve any such claim subject to this Article X without Indemnitor's consent, not to be unreasonably withheld) before entering into any settlement of a claim withheld or ceasing 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 obligations with respect to such claim, without prejudicedelayed.
Appears in 1 contract
Defense of Claims. (a) If a party hereto seeks any Indemnitee receives notice of the ----------------- assertion or commencement of any Third Party Claim against such Indemnitee with respect to which an Indemnifying Party is obligated to provide indemnification under ----------------- this Section 8.01Agreement, the Indemnitee will give such party (Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 30 calendar days after receipt of such written notice of such Third Party Claim. Such notice by the "Indemnified Party") shall give 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 will have the right to participate in, or, by giving written notice to the other party (Indemnitee, to assume, the "defense of any Third Party Claim at such Indemnifying Party") after receiving written ------------------ notice of any action, lawsuit, proceeding, investigation or other claim against it 's own expense and by such Indemnifying Party's own counsel (if by a third party) or discovering reasonably satisfactory to the liability, obligation or facts giving rise to such claim for indemnification, describing the claim, the amount thereof (if known and quantifiableIndemnitee), and the basis thereof; provided that the -------- failure Indemnitee will cooperate in good faith in such defense.
(b) If, within ten calendar days after giving notice of a Third Party Claim to so notify an Indemnifying Party pursuant to Section 5.4(a), an Indemnitee receives written notice from the Indemnifying Party shall not relieve that the Indemnifying Party has elected to assume the defense of its or his obligations hereunder except to such Third Party Claim as provided in the extent such failure shall have prejudiced the Indemnifying Party. In that regardlast sentence of Section 5.4(a), if any 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify 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 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 same in writingmatter, specifying in detail the basis of such claim and the facts pertaining thereto Indemnitee may assume its own defense, and the Indemnifying Party shall will be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible liable for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 have the right to -------- ------- assume control of such defense and shall pay the fees and costs or expenses of counsel retained by the Indemnified Party, if the claim which the Indemnifying Party seeks to assume control (A) seeks non-monetary relief, (B) involves criminal paid or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defendincurred in connection therewith. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall obtain Without the prior written consent of the Indemnified Indemnitee, the Indemnifying Party (which shall will not be unreasonably withheld) before entering 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, or which provides for injunctive or other non-monetary relief applicable to the Indemnitee or does not include an unconditional release of all Indemnified Parties. 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 notice, the Indemnitee may continue to contest or defend such Third Party Claim and, in such event, the maximum liability of the Indemnifying Party as to such Third Party Claim will not exceed 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") 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 Indemnitee becomes aware of such Direct Claim. 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 ceasing may be sustained by the Indemnitee. The Indemnifying Party will have a period of 30 calendar days within which to defend respond in writing to such Direct Claim. If the Indemnifying Party does not so respond within such 30 calendar day period, the Indemnifying Party will be deemed to have rejected such claim, if pursuant to or as a result of such settlement or cessation, injunction or other equitable relief in which event the Indemnitee will be imposed against free to pursue such remedies as may be available to the Indemnified Party Indemnitee on the terms and subject to the provisions of this Agreement.
(d) A failure to give timely notice or if such settlement does not expressly unconditionally release the Indemnified Party from all liabilities and obligations with respect to such claiminclude any specified information in any notice as provided in Sections 5.4(a), without prejudice.5.4(b) or 5.4
Appears in 1 contract
Samples: Acquisition Agreement (Collins & Aikman Floor Coverings Inc)
Defense of Claims. If the Indemnifying Party elects to defend a party hereto seeks indemnification under ----------------- this CLAIM pursuant to Section 8.0115.6.1, such party (the "Indemnified Party") it shall give written ------------ ----------------- notice to the other party Indemnified Party within fifteen (15) days after the "Indemnifying Party"receipt of the notice from the Indemnified Party of the potential indemnifiable CLAIM which involves (and continues to involve) after receiving written ------------------ notice of any actionsolely monetary damages; provided, lawsuit, proceeding, investigation or other claim against it that (if by a third partya) or discovering the liability, obligation or facts giving rise to such claim for indemnification, describing the claim, the amount thereof (if known and quantifiable), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party shall not relieve expressly agrees in such notice that, as between 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 action, lawsuit, proceeding, investigation or other claim shall be brought or asserted by any third party which, if adversely determined, would entitle and the Indemnified Party to indemnity pursuant to this Section 8.01Party, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled solely obligated to participate in satisfy and discharge the defense of such actionCLAIM, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the terms, conditions and limitations set forth belowof this AGREEMENT, and (b) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right Party makes reasonably adequate provisions to assume control of such defense, it must first:
(i) enter into an agreement with ensure the Indemnified Party of the ability of the Indemnifying Party to satisfy the full amount of any adverse monetary judgment that may result such conditions (in form and substance the "Litigation Conditions"). Subject to compliance with the Litigation Conditions, the Indemnifying Party shall retain counsel reasonably satisfactory to the Indemnified Party) pursuant Party to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to represent the Indemnified Party for all Losses relating to such claim; and
(ii) 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 have the right to -------- ------- assume control of such defense and shall pay the fees and expenses of such counsel retained by the Indemnified Party, if the claim which the Indemnifying Party seeks related to assume control (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defendsuch proceeding. If the Indemnifying Party is permitted to assume and control the defense and elects to do soIn any such proceeding, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereofretain its own counsel, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless unless: (a) the employment thereof has been specifically authorized by the Indemnifying Party in writingand the Indemnified Party shall have mutually agreed to the retention of such counsel, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified PartyParty and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. All such fees and expenses shall be reimbursed as they are incurred. If the Indemnifying Party shall control Litigation Conditions are not met within twenty (20) days after receipt of notice of the defense of any such claimCLAIM, the Indemnifying Party shall obtain be bound by any reasonable defense or settlement made by the Indemnified Party and shall reimburse the Indemnified Party for any and all damages, fines, fees, penalties, judgments, deficiencies, losses and expenses (including without limitation interest, court costs, reasonable fees of attorneys, accountants and other experts or other expenses of litigation or other proceedings or of any claim, default or assessment) of the Indemnified Party related to the defense or settlement of the CLAIM. If the Litigation Conditions have been met, then the Indemnified Party shall not settle any CLAIM for which it is seeking indemnification without the prior consent of the Indemnifying Party, which consent shall not be unreasonably withheld. The Indemnified Party shall, if requested by the Indemnifying Party, cooperate in all reasonable respects in the defense of such CLAIM that is being managed and controlled by the Indemnifying Party. The Indemnifying Party shall not, without the written consent of the Indemnified Party (which shall not be unreasonably withheld) before entering into Party, effect any settlement of a claim any pending or ceasing to defend such claim, if pursuant to or as a result threatened proceeding in respect of such settlement or cessation, injunction or other equitable relief will be imposed against which the Indemnified Party is, or if arising out of the same set of facts could have been, a Party and indemnity could have been sought hereunder by the Indemnified Party, unless such settlement does not expressly unconditionally includes an unconditional release of the Indemnified Party from all liabilities and obligations with respect to liability on claims that are the subject matter of such claim, without prejudiceproceeding.
Appears in 1 contract
Samples: Ex u.s. Commercialization Agreement (Genta Inc De/)
Defense of Claims. If a party hereto seeks indemnification under ----------------- this Section 8.01, such party (the "Indemnified Party") shall give written ------------ ----------------- notice to the other party (the "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 (if known and quantifiable), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party shall not relieve 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 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party Parties shall be entitled to participate in assume and control the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead any Third Party Claim through counsel of its choice (such defense with reputable counsel to be reasonably acceptable to the Indemnified Party) if (i) it gives notice of its intention to do so to the Indemnified Party within 30 days of receiving notice of the Third Party Claim, (ii) the Indemnifying Parties have sufficient financial resources, in the reasonable judgment of the Indemnified Party, to satisfy the amount of any adverse monetary judgment that is reasonably likely to result; provided that, as a condition precedent (iii) the Third Party Claim solely seeks (and continues to seek) monetary damages; (iv) the Third Party Claim does not include criminal charges and (v) the Third Party Claim were to be decided adversely to the Indemnifying -------- Party's right , such a decision could reasonably be expected to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (result in form and substance reasonably satisfactory to the Indemnified Party) pursuant to Losses for which the Indemnifying Party agrees to would be fully responsible for all a greater portion of the Losses relating related to such claims and that it will provide full indemnification to the Indemnified Third Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and Claim than the Indemnified Party. If the Indemnifying Party shall control Parties do not assume the defense of any such claima Third Party Claim in accordance with this Section 9.4(c), the Indemnifying Parent Indemnified Party may continue to defend the Third Party Claim. The Parent Indemnified Party shall obtain cooperate with the prior Indemnifying Parties in such defense and make available to the Indemnifying Parties, at the Indemnifying Parties’ expense, all witnesses, pertinent records, materials and information in the Parent Indemnified Party’s possession or under the Parent Indemnified Party’s control relating thereto as is reasonably requested by the Indemnifying Parties. Except with the written consent of the Parent Indemnified Party, the Indemnifying Parties shall not, in the defense of a Third Party (which shall not be unreasonably withheld) before entering Claim, consent to the entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving to the Parent Indemnified Party by the third party of a claim or ceasing 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 obligations liability with respect to such suit, claim, without prejudiceaction, or proceeding, unless there is no finding or admission of (A) any violation of law by the Parent Indemnified Party (or any affiliate thereof), (B) any liability on the part of the Parent Indemnified Party (or any affiliate thereof) or (C) any violation of the rights of any person and no effect on any other claims of a similar nature that may be made by the same third party against the Parent Indemnified Party (or any affiliate thereof).
Appears in 1 contract
Samples: Stock Purchase Agreement (Quinpario Acquisition Corp.)
Defense of Claims. If (a) Promptly after receipt of a written claim by any third party hereto seeks indemnification under ----------------- this Section 8.01, such party upon Buyer or Sellers (the a "Indemnified PartyClaim") shall give written ------------ ----------------- notice to for which indemnity may be sought from the other party (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 claimhereunder, the amount thereof party so served (if known and quantifiable), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party "Indemnified Party") shall not relieve 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 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis receipt of such claim and the facts pertaining thereto and written claim. In such instance, the Indemnifying Party shall be entitled have the right, but not the obligation, to participate in assume and control the defense settlement thereof prior to commencement of such actionsuit, lawsuitor litigation, proceedingas the case may be, investigation or other claim giving rise to of the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead Claim with counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance its choice reasonably satisfactory to the Indemnified Party. The Indemnifying Party shall notify the Indemnified Party in writing of its decision to assume control of the settlement thereof prior to commencement of suit, or litigation, as the case may be, promptly but in no event later than fifteen (15) pursuant days after the Indemnified Party has given notice thereof to which the Indemnifying Party.
(b) If the Indemnifying Party agrees elects to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to assume the defense of the third party Claim in accordance with (a) above, neither the Indemnified Party for all Losses relating to such claim; and
(ii) 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 nor the Indemnifying Party shall not have consent to 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense entry of any judgment or enter into any settlement with respect to such claim, the Indemnifying Party shall obtain Claim without the prior written consent of the Indemnified Party (which shall other party, such consent not to be unreasonably withheld. If the Indemnifying Party assumes the defense of the Claim, the Indemnified Party may retain separate co-counsel at its sole cost and expense and may in such manner participate in such defense. The Indemnified Party shall in any event cooperate in the defense of the Claim at the expense of the Indemnifying Party.
(c) before entering If the Indemnifying Party elects not to assume the defense of the litigation in accordance with (a) above, the Indemnified Party may defend against and consent to the entry of any judgment or enter into any settlement of a claim with respect to the Claim or ceasing to defend action in any manner it reasonably deems appropriate after consultation with the Indemnifying Party. The Indemnifying Party in such claim, if pursuant to or as a result of such settlement or cessation, injunction or other equitable relief will be imposed against instance shall reimburse the Indemnified Party or if such settlement does for the costs of defending the Claim, including but not expressly unconditionally release limited to reasonable attorneys' fees and expenses.
(d) If the Buyer is the Indemnified Party from all liabilities Party, the Claim amount (the "Claim Amount") and obligations with respect any costs incurred by the Buyer in defending the third party Claim shall first be satisfied by setoff against the Note. Following notification to the Sellers of any such claimClaim, without prejudiceBuyer shall hold the Claim Amount in abeyance pending resolution thereof by written agreement of the parties or a final judgment of a court of competent jurisdiction, during which time the accrual of interest and payments due and owing under the Note shall continue as if no Claim was filed. If the resolution results in a settlement or judgment against the Buyer, then the interest accruals and the monthly payments due under the Note shall be adjusted accordingly, and any resulting credits due the Buyer for over accrual of interest or excess payments of principal shall be taken dollar for dollar against the next monthly installments due under the Note.
Appears in 1 contract
Defense of Claims. (a) If a party hereto seeks any Indemnitee receives notice of assertion or commencement of any Third Party Claim against such Indemnitee with respect to which an Indemnifying Party is obligated to provide indemnification under ----------------- this Section 8.01Agreement, the Indemnitee will give such party (Indemnifying Party reasonably prompt written notice thereof. Such notice will describe the "Indemnified Party") shall give 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 will have the right to participate in, or, by giving written notice to the other party (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 if: (i) the Indemnifying Party acknowledges its obligation to indemnify the Indemnitee for any Indemnifiable Losses resulting from such Third Party Claim, (ii) such Third Party Claim involves (and continues to involve) solely monetary damages; (iii) such Third Party Claim does not relate to or arise in connection with any criminal action or the Indemnitee’s relationship with any customer, supplier or employee; and (iv) the Indemnifying Party makes reasonably adequate provision to satisfy the Indemnitee of the Indemnifying Party’s ability to defend, satisfy and discharge such Third Party Claim (collectively, the “Defense Conditions”). The Indemnifying Party shall from time to time apprise the Indemnitee of the status of the Third Party Claim and shall furnish the Indemnitee with such documents and information filed or delivered in connection with such claim, Liability or expense as the Indemnitee may reasonably request.
(b) If, within ten (10) calendar days after giving notice of a Third Party Claim to an Indemnifying Party pursuant to Section 11.5(a), an Indemnitee receives written notice from the Indemnifying Party that the Indemnifying Party has elected to assume the defense of such Third Party Claim as provided in the last sentence of Section 11.5(a) and the Defense Conditions are satisfied, 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 five (5) calendar days after receiving written ------------------ notice of any action, lawsuit, proceeding, investigation or other claim against it (if by a third party) or discovering from the liability, obligation or facts giving rise to such claim for indemnification, describing the claim, the amount thereof (if known and quantifiable), and the basis thereof; provided Indemnitee that the -------- failure to so notify Indemnitee believes the Indemnifying Party shall not relieve has failed to take such steps, if the Indemnifying Party has not undertaken fully to indemnify the Indemnitee in respect of its or his obligations hereunder except all Indemnifiable Losses relating to the extent such failure shall have prejudiced the Indemnifying Party. In that regard, matter or if any action, lawsuit, proceeding, investigation or other claim shall of the Defense Conditions cease to be brought or asserted by satisfied for any third party which, if adversely determined, would entitle the Indemnified Party to indemnity pursuant to this Section 8.01reason, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writingIndemnitee may assume its own defense, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall will be entitled to participate liable for all costs or expenses paid or incurred in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expenseconnection therewith, and at its option (subject to the limitations set forth below) Indemnitee shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 have the right to -------- ------- assume control compromise or settle such Third Party Claim with the consent 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which consent shall not be unreasonably withheld). If the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that Defense Conditions are satisfied and the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted elects to assume and control the defense of a Third Party Claim as provided herein, then (i) the Indemnifying Party will not be liable for any settlement of such Third Party Claim effected without its consent, which consent will not be unreasonably withheld or delayed, and elects to do so(ii) the Indemnifying Party may settle such Third Party Claim only with the consent of the Indemnitee, which consent will not unreasonably be withheld or delayed. Notwithstanding anything herein stated, the Indemnified Party Indemnitee shall at all times have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to fully participate in the such defense thereofat its own expense directly or through counsel; provided, but however, that the fees and expenses of such separate counsel employed shall be borne by the Indemnified Indemnifying Party shall be if (i) the Indemnifying Party has failed to assume the defense within the period provided herein, (ii) there exists a conflict between the interests of the Indemnifying Party and the Indemnitee, (iii) a defense exists for the Indemnitee which is not available to the Indemnifying Party, or (iv) the employment of such counsel at the expense of the Indemnified Indemnifying Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing. If the Defense Conditions are not satisfied, the Indemnitee may assume the exclusive right to defend, compromise or (b) the Indemnified settle such Third Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between Claim, but the Indemnifying Party will not be bound by any determination of a Third Party Claim so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld or delayed); provided, that the Indemnitee will not be required to obtain any consent of the Indemnifying Party to the determination of such Third Party Claim (and will not prejudice its right to be indemnified with respect to such Third Party Claim by determining such Third Party Claim) if the Indemnified PartyIndemnifying Party is disputing in any manner its obligation to indemnify the Indemnitee in respect of such Third Party Claim.
(c) A failure to give timely notice or to include any specified information in any notice as provided in Sections 11.5(a) or 11.5(b) will not affect the rights or obligations of any party hereunder except and only to the extent that, as a result of such failure, any party which was entitled to receive such notice was deprived of its right to recover any payment under its applicable insurance coverage or was otherwise materially damaged as a result of such failure.
(d) The Indemnifying Party will have a period of fifteen (15) calendar days within which to respond in writing to any claim by an Indemnitee on account of an Indemnifiable Loss which does not result from a Third Party Claim (a “Direct Claim”). If the Indemnifying Party shall control the defense of any does not so respond within such claimfifteen (15) calendar day period, the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not will be unreasonably withheld) before entering into any settlement of a claim or ceasing deemed to defend have rejected such claim, if pursuant to or as a result of such settlement or cessation, injunction or other equitable relief in which event the Indemnitee will be imposed against free to pursue such remedies as may be available to the Indemnified Party or if such settlement does not expressly unconditionally release Indemnitee on the Indemnified Party from all liabilities terms and obligations with respect subject to such claim, without prejudicethe provisions of this Article XI and Article XII.
Appears in 1 contract
Defense of Claims. (i) If a party hereto seeks any Indemnitee receives notice of assertion or commencement of any Third Party Claim against such Indemnitee with respect to which an Indemnifying Party is obligated to provide indemnification under ----------------- this Section 8.01Agreement, the Indemnitee will give such party (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 "Indemnified Party") shall give 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 will have the right to participate in, or, by giving written notice to the other party (Indemnitee, to assume, the "defense of any Third Party Claim at such Indemnifying Party") after receiving written ------------------ notice of any action, lawsuit, proceeding, investigation or other claim against it 's own expense and by such Indemnifying Party's own counsel (if by a third party) or discovering reasonably satisfactory to the liability, obligation or facts giving rise to such claim for indemnification, describing the claim, the amount thereof (if known and quantifiableIndemnitee), and the basis thereof; provided that the -------- failure to so notify Indemnitee will cooperate in good faith in such defense, unless the Indemnifying Party shall not relieve is also a party to such Third Party Claim and the Indemnitee determines in good faith that joint representation would be inappropriate.
(ii) If, within ten calendar days after giving notice of a Third Party Claim to an Indemnifying Party pursuant to Section 9.04(i), an Indemnitee receives written notice 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 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of has elected to assume the same in writing, specifying in detail the basis defense of such claim and Third Party Claim as provided in the facts pertaining thereto last sentence of Section 9.04(i), 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 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 will be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible liable for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 have the right to -------- ------- assume control of such defense and shall pay the fees and costs or expenses of counsel retained by the Indemnified Party, if the claim which the Indemnifying Party seeks to assume control (A) seeks non-monetary relief, (B) involves criminal paid or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defendincurred in connection therewith. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall obtain Without the prior written consent of the Indemnified Indemnitee, the Indemnifying Party (which shall will not be unreasonably withheld) before entering enter into any settlement of a 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 such claimindemnification hereunder. A failure to give timely notice or to include any specified information in any notice as provided in Sections 9.04(i) or 9.04(ii) will not affect the rights or obligations of any party hereunder except and only to the extent that, if pursuant to or as a result of such settlement failure, any party which was entitled to receive such notice was deprived of its right to recover any payment under its applicable insurance coverage or cessationwas actually and materially prejudiced in its defense of such claim by the failure to receive timely notice.
(iii) The Indemnifying Party will have 30 calendar days within which to respond in writing to any claim by an Indemnitee on account of an Indemnifiable Loss which does not result from a Third Party Claim (a "Direct Claim"). If the Indemnifying Party does not so respond within such 30 calendar day period, injunction or other equitable relief the Indemnifying Party will be imposed against the Indemnified Party or if such settlement does not expressly unconditionally release the Indemnified Party from all liabilities and obligations with respect deemed to have rejected such claim, without prejudice.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 X.
Appears in 1 contract
Defense of Claims. (a) If a party hereto seeks any Indemnitee receives notice of the assertion or commencement of any Third Party Claim against such Indemnitee with respect to which an Indemnifying Party is obligated to provide indemnification under ----------------- this Section 8.01Agreement, the Indemnitee will give such party (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 "Indemnified Party") shall give 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 will have the right to participate in or, by giving written notice to the other party (Indemnitee, to assume, the "defense of any Third Party Claim at such Indemnifying Party") after receiving written ------------------ notice of any action, lawsuit, proceeding, investigation or other claim against it 's own expense and by such Indemnifying Party's own counsel (if by a third party) or discovering reasonably satisfactory to the liability, obligation or facts giving rise to such claim for indemnification, describing the claim, the amount thereof (if known and quantifiableIndemnitee), and the basis thereof; provided that the -------- failure Indemnitee will cooperate in good faith in such defense.
(b) If, within 20 calendar days after giving notice of a Third Party Claim to so notify an Indemnifying Party pursuant to SECTION 5.4(A), an Indemnitee receives written notice from the Indemnifying Party shall not relieve that the Indemnifying Party has elected to assume the defense of its or his obligations hereunder except to such Third Party Claim as provided in the extent such failure shall have prejudiced the Indemnifying Party. In that regardlast sentence of SECTION 5.4(a), if any 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of will not be liable for any legal expenses subsequently incurred by the same Indemnitee in writingconnection with the defense thereof; provided, specifying in detail however, that if the basis of Indemnifying Party fails to take reasonable steps necessary to defend diligently such claim and Third Party Claim within ten calendar days after receiving written notice from the facts pertaining thereto 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 will be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible liable for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 have the right to -------- ------- assume control of such defense and shall pay the fees and costs or expenses of counsel retained by the Indemnified Party, if the claim which the Indemnifying Party seeks to assume control (A) seeks non-monetary relief, (B) involves criminal paid or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defendincurred in connection therewith. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall obtain Without the prior written consent of the Indemnified Indemnitee, the Indemnifying Party (which shall will not be unreasonably withheld) before entering 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 calendar 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 Party as to such Third Party Claim will not exceed 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") 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 Indemnitee becomes aware of such Direct Claim. 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 ceasing may be sustained by the Indemnitee. The Indemnifying Party will have a period of 30 calendar days within which to defend respond in writing to such Direct Claim. If the Indemnifying Party does not so respond within such 30 calendar day period, the Indemnifying Party will be deemed to have rejected such claim, if pursuant 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 Agreement.
(d) A failure to give timely notice or to include any specified information in any notice as provided in SECTIONS 5.4(A), 5.4(B) or 5.4(C) will not affect the rights or obligations of any party hereunder except and only to the extent that, as a result of such failure, any party which was entitled to receive such notice was deprived of its right to recover any payment under its applicable insurance coverage or was otherwise prejudiced as a result of such failure.
(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 cessationotherwise under or pursuant to any insurance coverage, injunction or pursuant to any claim, recovery, settlement, rebate or other equitable relief 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 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 Person 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 said Indemnity Payment will be imposed subrogated and subordinated in right of payment to the Indemnitee's rights against such third Person. Without limiting the Indemnified generality or effect of any other provision hereof, each such Indemnitee and Indemnifying Party or if such settlement does not expressly unconditionally release will duly execute upon request all instruments reasonably necessary to evidence and perfect the Indemnified Party from all liabilities above-described subrogation and obligations with respect to such claim, without prejudicesubordination rights.
Appears in 1 contract
Defense of Claims. If a party hereto seeks indemnification under ----------------- this Section 8.01, such party Any Buyer Indemnitee or Seller Indemnitee (the ----------------- "Indemnified Party") seeking indemnification under this Agreement shall give written ------------ ----------------- notice to the other party obligated to provide indemnification to such Indemnified Party (the "Indemnifying PartyIndemnitor") after receiving written ------------------ a notice of any action, lawsuit, proceeding, investigation or other claim against it (if by a third party"Claim Notice") or discovering describing in reasonable detail the liability, obligation or facts giving rise to such any claim for indemnification, describing the claim, the amount thereof (if known and quantifiable), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its or his obligations indemnification hereunder except to the extent such failure shall have prejudiced the Indemnifying Party. In that regard, if any 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party upon learning of the same in writing, specifying in detail the basis existence of such claim and shall give the facts pertaining thereto Indemnitor a copy of any such claim, process and legal proceedings. Upon receipt by the Indemnifying Indemnitor of a Claim Notice from an Indemnified Party shall be entitled with respect to participate in any claim of a third party, such Indemnitor may assume the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead thereof with counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant Party and, in such event, shall agree to which pay and otherwise discharge with the Indemnifying Party agrees to be fully responsible for Indemnitor's own assets all Losses relating to such claims judgments, deficiencies, damages, settlements, liabilities, losses, costs and that it will provide full indemnification to legal and other expenses related thereto; and the Indemnified Party for shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony, attend all Losses relating such conferences, discovery proceedings, hearings, trials and appeals and take such other action and assign such other documents as may be reasonably requested in connection therewith and as may be necessary to defend such claim; and
(ii) furnish claim or other proceeding in a timely manner. If the Indemnitor does not assume the defense thereof, the Indemnitor shall similarly cooperate with 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 have the right to -------- ------- assume control of in 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defendprosecution. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereofor prosecution of any lawsuit with respect to which the Indemnitor has assumed the defense and to employ its own counsel therein, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless unless: (ai) the employment thereof has been specifically authorized by Indemnitor shall not have promptly employed counsel to take charge of the Indemnifying Party in writing, defense of such action; or (bii) such Indemnified Party, upon the Indemnified Party has been advised by legal counsel reasonable advice of its counsel, shall have reasonably concluded that there exists a reasonable likelihood exists of a significant conflict of interest between with respect to the Indemnifying Party conduct of such Indemnified Party's defense by the Indemnitor, in any of which events, such fees and expenses of not more than one additional counsel for all of the Indemnified Parties shall be borne by the Indemnitor, in any of which events, such reasonable fees and expenses of not more than one additional counsel for all of the Indemnified Parties shall be borne by the Indemnitor, and the Indemnified Party. If Indemnitor shall not have the Indemnifying Party shall control right to direct the defense of any such action on behalf of the Indemnified Party. Prior to paying or settling any claim against which an Indemnitor is, or may be, obligated under this Agreement to indemnify the Indemnified Party, the Indemnified Party must first supply the Indemnitor with a copy of a final court judgment or decree holding the Indemnified Party liable on such claim, or failing such judgment or decree, must first receive the Indemnifying Party written approval of the terms and conditions of such settlement from the Indemnitor. The Indemnitor shall obtain have the right to settle any claim against it, subject to the prior written consent approval of the Indemnified Party (Party, which approval shall not be unreasonably withheld) before entering into any settlement of a claim or ceasing to defend such claim, if pursuant to or as a result of such settlement or cessation, 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 obligations with respect to such claim, without prejudice.
Appears in 1 contract
Samples: Asset Purchase Agreement (Medical Resources Inc /De/)
Defense of Claims. If a party hereto seeks indemnification under ----------------- this Section 8.01, such party (the "Third Party Claim is made against an Indemnified Party", (a) shall give written ------------ ----------------- notice the Contributor will be entitled to participate in the defense thereof and, (b) if it so chooses, to assume the defense thereof with counsel selected by the Contributor, provided that in connection with such assumption such counsel is reasonably satisfactory to the other party (Indemnified Party. Should the "Indemnifying Party") after receiving written ------------------ notice Contributor so elect to assume the defense 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 claimThird Party Claim, the amount thereof (if known and quantifiable), and the basis thereof; provided that the -------- failure Contributor will not be liable to so notify the Indemnifying Party shall not relieve 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 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 for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof unless (i) employment of such counsel has been specifically authorized by the Contributor, (ii) the Indemnified Party shall have been advised by its counsel that there may be a conflict of interest between the Indemnified Party and the Contributor in the defense of such action (in which case the Contributor shall not have the right to direct the defense of such action on the Indemnified Party's behalf), or (iii) the Contributor shall have failed to contest or defend such action within a reasonable time or failed to continue to employ counsel satisfactory to the Indemnified Party, in any of which cases the fees and expenses of the Indemnified Party's counsel shall be at the Contributor's cost and expense and subject to the indemnity pursuant provided for hereunder. If the Contributor elects to this Section 8.01assume the defense of a Third Party Claim, the Indemnified Party will (i) cooperate in all reasonable respects with the Contributor in connection with such defense and (ii) not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Contributor's prior written consent, as the case may be. If the Contributor shall ------------ promptly notify assume the Indemnifying defense of any Third Party Claim, the Contributor shall not settle, compromise or discharge such Third Party Claim without the prior written consent of each applicable Indemnified Party, unless such settlement, compromise or discharge includes a complete release of each such Indemnified Party reasonably satisfactory to such Indemnified Party. If the same in writingContributor shall assume the defense of any Third Party Claim, specifying in detail except as provided above, the basis of such claim and the facts pertaining thereto and the Indemnifying Indemnified Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth belowbut not control) shall be entitled to appoint lead counsel of such defense with reputable its own counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defendat its own expense. If the Indemnifying Party is permitted to Contributor does not assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any such claimThird Party Claim, the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which may defend the same in such manner as it may deem appropriate, including settling such claim or litigation after giving notice to the Contributor of such terms and, subject to Section 10.09 hereof, the Contributor will promptly reimburse the Indemnified Party upon written request. Anything contained in this Agreement to the contrary notwithstanding, the Contributor shall not be unreasonably withheld) before entering into entitled to assume the defense of any settlement part of a claim or ceasing to defend such claim, if pursuant to or as a result of such settlement or cessationThird Party Claim that seeks an order, injunction or other equitable relief will be imposed or relief for other than money damages against the Indemnified Party or if such settlement does not expressly unconditionally release unless the Contributor has demonstrated to the Indemnified Party from all liabilities and reasonable financial capacity to meet its obligations with respect to such claim, without prejudiceThird Party Claim.
Appears in 1 contract
Defense of Claims. If a party hereto seeks indemnification under ----------------- this Section 8.01, such party (the "Each Indemnified Party") Party shall give written ------------ ----------------- notice to the other party Delaware Company (the "Indemnifying Party"and Holdings if it is a separate legal entity from Delaware Company) promptly after receiving written ------------------ notice such Indemnified Party has actual knowledge of any actionclaim as to which indemnity may be sought, lawsuit, proceeding, investigation and shall permit the Indemnitors (or other claim against it (if by a third partyany of them) or discovering to assume the liability, obligation or facts giving rise to defense of any such claim or any litigation resulting therefrom, provided that counsel for indemnificationthe Indemnitors, describing who shall conduct the claimdefense of such claim or litigation, shall be approved by the amount thereof Indemnified Parties (if known and quantifiablewhose approval shall not unreasonably be withheld or delayed), and the basis thereof; Indemnified Parties may participate in such defense, and provided further that the -------- failure of any Indemnified Party to so notify the Indemnifying Party give notice as provided herein shall not relieve the any Indemnifying Party of its any obligation or his obligations hereunder liability under this Section 5(f) except to the extent the failure to give such failure shall have prejudiced notice is materially prejudicial to the Indemnifying PartyIndemnitors’ ability to defend such action. In that regardNotwithstanding the foregoing, however, if any action, lawsuit, proceeding, investigation or other claim shall be brought or asserted by any third party which, if adversely determined, would entitle the an Indemnified Party to indemnity pursuant to this Section 8.01, reasonably determines that there is or may be a conflict between the positions of such Indemnified Party shall ------------ promptly notify the Indemnifying Party and any of the same Indemnitors in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in connection with the defense of such action, lawsuitsuit, proceedinginvestigation, investigation inquiry or other claim giving rise proceeding or that there may be legal defenses available to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (different from or in form and substance reasonably satisfactory addition to those available to any of the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible Indemnitors, then counsel for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be entitled to conduct the defense of such matter at the expense of the Indemnitors’ sole expense, and in any event, such Indemnified Party unless (a) the employment thereof has been specifically authorized shall be entitled to have counsel chosen by the Indemnifying Party in writing, or (b) the such Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between participate in, but not to conduct, the Indemnifying Party and the Indemnified Partydefense. If the Indemnifying Party shall control No Indemnitor, in the defense of any such claimclaim or litigation, shall, except with the Indemnifying Party shall obtain the prior written consent of the each Indemnified Party (which shall not be unreasonably withheld) before entering Party, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimants or plaintiffs to such Indemnified Party of a claim or ceasing 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 obligations with liability in respect to such claim, without prejudiceclaim or litigation or that provides for the payment by any Indemnified Party of any amounts in settlement of such claim or litigation.
Appears in 1 contract
Defense of Claims. (a) If a party hereto seeks any Indemnitee receives notice of the assertion or commencement of any Third Party Claim against such Indemnitee in respect of which an Indemnifying Party is obligated to provide indemnification under ----------------- this Section 8.01Agreement, the Indemnitee will give such party (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 "Indemnified Party") shall give 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 will have the right to participate in or, by giving written notice to the other party (Indemnitee, to assume, the "defense of any Third Party Claim at such Indemnifying Party") after receiving written ------------------ notice of any action, lawsuit, proceeding, investigation or other claim against it 's own expense and by such Indemnifying Party's own counsel (if by a third party) or discovering reasonably satisfactory to the liability, obligation or facts giving rise to such claim for indemnification, describing the claim, the amount thereof (if known and quantifiableIndemnitee), and the basis thereof; provided that the -------- failure Indemnitee will cooperate in good faith in such defense.
(b) If, within ten days after giving notice of a Third Party Claim to so notify an Indemnifying Party pursuant to Section 11.4(a), an Indemnitee receives written notice from the Indemnifying Party shall not relieve that the Indemnifying Party has elected to assume the defense of its or his obligations hereunder except to such Third Party Claim as provided in the extent such failure shall have prejudiced the Indemnifying Party. In that regardlast sentence of Section 11.4(a), if any 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify 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 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 same in writingmatter, specifying in detail the basis of such claim and the facts pertaining thereto Indemnitee may assume its own defense, and the Indemnifying Party shall will be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible liable for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 have the right to -------- ------- assume control of such defense and shall pay the fees and costs or expenses of counsel retained by the Indemnified Party, if the claim which the Indemnifying Party seeks to assume control (A) seeks non-monetary relief, (B) involves criminal paid or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defendincurred in connection therewith. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall obtain Without the prior written consent of the Indemnified Indemnitee, the Indemnifying Party (which shall will not be unreasonably withheld) before entering 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 claim firm offer is made to settle a Third Party Claim without leading to liability or ceasing 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 notice, the Indemnitee may continue to contest or defend such claimThird Party Claim and, if pursuant in such event, the maximum liability of the Indemnifying Party as to such Third Party Claim will not exceed the amount of such settlement offer, plus costs and expenses paid or incurred by the Indemnitee through the end of such ten-day period.
(c) 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 extent that, as a result of such settlement failure, any party which was entitled to receive such notice was deprived of its right to recover any payment under its applicable insurance coverage or cessationwas otherwise damaged as a result of such failure.
(d) The Indemnifying Party will have a period of 30 days within which to respond in writing to any claim by an Indemnitee on account of an Indemnifiable Loss that does not result from a Third Party Claim (a "Direct Claim"). If the Indemnifying Party does not so respond within such 30- day period, injunction or other equitable relief the Indemnifying Party will be imposed against the Indemnified Party or if such settlement does not expressly unconditionally release the Indemnified Party from all liabilities and obligations with respect deemed to have rejected such claim, without prejudicein 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 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 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 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.
Appears in 1 contract
Samples: Asset Purchase Agreement (Metawave Communications Corp)
Defense of Claims. (a) If any Indemnitee receives notice of the assertion or commencement of any Third Party Claim made or brought by any Person who is not a party hereto seeks Party to this Agreement or any Affiliate of a Party to this Agreement with respect to which indemnification under ----------------- this Section 8.01is to be sought from an Indemnifying Party, such party (the "Indemnified Party") 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 notice of such Third Party Claim. Such notice shall describe the nature of the Third Party Claim in reasonable detail (as it is then known to the Indemnitee) 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 other party (Indemnitee, to elect to assume the "defense of any Third Party Claim at such Indemnifying Party") after receiving written ------------------ notice of any action's expense and by such Indemnifying Party's own counsel, 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 (if known and quantifiable), and the basis thereof; provided that the -------- failure counsel for the Indemnifying Party who shall conduct the defense of such Third Party Claim shall be reasonably satisfactory to so notify 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 or to participate in the defense of any Third Party Claim, the Indemnitee may compromise or settle such Third Party Claim over the objection of the Indemnifying Party, which settlement or compromise shall conclusively establish the Indemnifiable Loss for which the Indemnified Party may seek indemnification from the Indemnifying Party pursuant to this Agreement.
(i) 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 8.4(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 shall not relieve fail 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 of its or his obligations hereunder except has failed to the extent take such failure shall have prejudiced the Indemnifying Party. In that regard, if any 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 to indemnity pursuant to this Section 8.01steps, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto Indemnitee may assume its own defense and the Indemnifying Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible liable for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; andreasonable expenses thereof.
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall obtain Without the prior written consent of the Indemnified Indemnitee, the Indemnifying Party (which shall not be unreasonably withheld) before entering enter into any settlement of any Third Party Claim which would lead to liability, constitute an admission of a claim criminal act or ceasing 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, the admission of criminal fault or 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 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 at its own expense. 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 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 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, if the Indemnitee will be free to seek enforcement of its right 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, from or against any other entity, the amount of such reduction (less any out-of-pocket costs incurred in connection therewith and the cost of any adjusted premium charges to the extent directly relating to the claim for such indemnifiable Loss ("Recovery Costs"), 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 8.4 shall not affect the rights or obligations of any Party hereunder except if, and only to the extent that, as a result of such settlement or cessationfailure, injunction or other equitable relief will be imposed against the Indemnified Party or if which was entitled to receive such settlement does not expressly unconditionally release the Indemnified Party from all liabilities and obligations with respect to notice was actually prejudiced as a result of such claim, without prejudicefailure.
Appears in 1 contract
Samples: Asset Purchase Agreement (Citizens Communications Co)
Defense of Claims. 10.4.1 If a party hereto seeks any Indemnitee receives notice of assertion or commencement of any Third Party Claim against such Indemnitee with respect to which an Indemnifying Party is obligated to provide indemnification under ----------------- this Section 8.01Agreement, such party (the "Indemnified Party") 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 other party (Indemnitee, assume, the "defense of any Third Party Claim at such Indemnifying Party") after receiving written ------------------ notice of any action, lawsuit, proceeding, investigation or other claim against it ’s own expense and by such Indemnifying Party’s own counsel (if by a third party) or discovering reasonably satisfactory to the liability, obligation or facts giving rise to such claim for indemnification, describing the claim, the amount thereof (if known and quantifiableIndemnitee), and the basis thereof; provided Indemnitee shall 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 Indemnifying Party that the -------- failure Indemnifying Party has elected to so notify assume the defense of such Third Party Claim as provided in the last sentence of Section 10.4.1, the Indemnifying Party shall not relieve be liable for any legal expenses incurred by the Indemnitee in connection with the defense thereof after receipt of such written notice; provided, however, that if the Indemnifying Party of its or his obligations hereunder except fails to take reasonable steps necessary to defend diligently such Third Party Claim within ten calendar days after receiving written notice from the extent such failure shall have prejudiced Indemnitee that the Indemnifying Party. In that regard, if any 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify 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 same in writingmatter, specifying in detail the basis of such claim and the facts pertaining thereto Indemnitee may assume its own defense, and the Indemnifying Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible liable for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal paid or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defendincurred in connection therewith. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall obtain Without the prior written consent of the Indemnified Indemnitee, the Indemnifying Party (which shall not be unreasonably withheld) before entering enter into any settlement of a claim any Third Party Claim that 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 such claimindemnification hereunder.
10.4.3 A failure to give timely notice or to include any specified information in any notice as provided in Sections 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, if pursuant to or as a result of such settlement failure, any party that was entitled to receive such notice was deprived of its right to recover any payment under its applicable insurance coverage or cessation, injunction or other equitable relief will be imposed against the Indemnified Party or if was otherwise damaged as a result of such settlement does not expressly unconditionally release the Indemnified Party from all liabilities and obligations with respect to such claim, without prejudicefailure.
Appears in 1 contract
Defense of Claims. If a claim for Damages (a “Claim”) is made by a party hereto seeks entitled to Indemnification or Set Off Rights hereunder against the Indemnifying Party, the party claiming such indemnification under ----------------- this Section 8.01, such party (the "Indemnified Party") or Set Off Rights shall give written ------------ ----------------- notice (a “Claim Notice”) to the other party Party (the "(“Indemnifying Party"”) as soon as practicable after receiving written ------------------ notice the party entitled to indemnification or Set Off Rights (the “Indemnified Party”) becomes aware of any actionfact, lawsuit, proceeding, investigation condition or other claim against it (if by a third party) or discovering the liability, obligation or facts giving event which may give rise to such claim Damages for indemnification, describing which indemnification or Set Off Rights may be sought. If any lawsuit or enforcement action is filed against any party entitled to the claimbenefit of indemnity or Set Off Rights hereunder, the amount Claim Notice thereof shall be given to the Indemnifying Party as promptly as practicable (and in any event within thirty (30) calendar days after the service of the citation or summons). After such notice, if known and quantifiable), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its or his obligations hereunder except acknowledge in writing to the extent such failure shall have prejudiced the Indemnifying Party. In that regard, if any 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and that the Indemnifying Party shall be entitled to participate obligated under the terms of its indemnity or Set Off Rights hereunder in the defense of connection with such lawsuit or action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 then the Indemnifying Party shall not have the right be entitled, if it so elects, (1) to -------- ------- assume take control of such the defense and shall pay investigation of such lawsuit or action, (2) to employ and engage attorneys of its own choice to handle and defend the fees same, at the Indemnifying Party’s cost, risk and expenses of counsel retained by expense unless the Indemnified Party, if the claim which named parties to such action or proceeding include both the Indemnifying Party seeks to assume control (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which and the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised in writing by legal counsel that a reasonable likelihood exists of a conflict of interest between there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party Party, and (3) to compromise or settle such Claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. If the Indemnifying Party shall control fails to assume the defense of any such Claim within fifteen (15) calendar days after receipt of the Claim Notice, the Indemnified Party against which such Claim has been asserted will (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party’s cost and expense, the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party. In the event the Indemnified Party assumes the defense of the claim, the Indemnified Party will keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheld) before entering into liable for any settlement of a claim or ceasing to defend such claim, if any action effected pursuant to or as a result and in accordance with this Section and for any final judgment (subject to any right of appeal), and the Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any Damages by reason 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 obligations with respect to such claim, without prejudicejudgment.
Appears in 1 contract
Samples: Asset Purchase Agreement (Stockgroup Information Systems Inc)
Defense of Claims. If a party hereto seeks indemnification under ----------------- this Section 8.01, such party (the "Indemnified Party") shall give written ------------ ----------------- notice In connection with any claim giving rise to the other party (the "Indemnifying Party") after receiving written ------------------ notice indemnity hereunder resulting from or arising out of any action, lawsuit, proceeding, investigation claim or other claim against it (if legal proceeding by a third party) or discovering , Parent shall give the liability, obligation or facts giving rise to such claim for indemnification, describing the claim, the amount thereof (if known and quantifiable), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party shall not relieve 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 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis Stockholders’ Representative prompt notice of such claim and the facts pertaining thereto Stockholders’ Representative on behalf of the Indemnifying Party at its cost and expense (the sole source of satisfaction of such cost and expense shall be the Escrow Account pursuant to the terms of the Escrow Agreement) and with counsel reasonably satisfactory to the Parent Indemnified Party may, upon written notice to the Parent Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Escrow Account is comprised of sufficient financial resources to defend against such third-party claim and fulfill the Indemnifying Party’s highest reasonably likely Losses with respect to such claim or legal proceeding, (ii) the third-party claim does not seek an injunction or other equitable relief against or adversely affecting a Parent Indemnified Party, (iii) the Indemnifying Party acknowledges in writing its obligation to indemnify the Parent Indemnified Party against any Losses that may result from the third-party claim (subject to the sufficiency of the funds in the Escrow Account), and (iv) the Indemnifying Party agrees in writing not to settle such claim or proceeding without the prior written consent of the Parent Indemnified Party, which consent shall not be unreasonably withheld. If the Stockholders’ Representative so assumes, the Parent Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel at its own expense; provided, however, that if there are one or more legal defenses available to the Parent Indemnified Party that conflict with those available to the Indemnifying Party, or the Indemnifying Party fails to take reasonable steps necessary to defend diligently the claim after receiving written notice from the Parent Indemnified Party that it reasonably believes that the Indemnifying Party has failed to do so, the Parent Indemnified Party may assume the defense of such claim; and provided, further, that the Parent Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Parent Indemnified Party assumes the defense of the claim, the Parent Indemnified Party shall be reimbursed out of the Escrow Account pursuant to the terms of the Escrow Agreement on a quarterly basis, provided a notice of such claim is first provided and resolved in accordance with Section 10.02, for reasonable fees and expenses of counsel retained by the Parent Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such actionclaim, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification with its counsel at its own expense; provided, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided thathowever, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 Parent Indemnified Party shall not have the right to -------- ------- assume control of such defense and shall pay the be reimbursed for fees and expenses of counsel retained by the Indemnified Party, if the claim which the Indemnifying Party seeks to assume control (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defendmore than one separate firm. If the Indemnifying Party is permitted thereafter seeks to assume and control question the defense and elects to do so, manner in which the Parent Indemnified Party shall have defended such third party claim or the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, amount or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense nature of any such claimsettlement, the Indemnifying Party shall obtain have the prior written consent burden to prove, by a preponderance of the evidence, that the Parent Indemnified Party (which shall did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation, to each other such assistance as they may reasonably require of each other and to cooperate in good faith with each other, including providing such documents and records as may be unreasonably withheld) before entering into any settlement of a claim or ceasing to defend such claim, if pursuant to or as a result pertinent and the time and attention of such settlement personnel as may reasonably be necessary, in order to ensure the proper and adequate defense of any action, suit or cessationproceeding, injunction whether 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 obligations with respect subject to such claim, without prejudiceindemnification hereunder.
Appears in 1 contract
Defense of Claims. If In connection with any claim that may give rise to indemnity under this Section 8 resulting from or arising out of any claim or Proceeding against an Indemnitee by a person or entity that is not a party hereto seeks indemnification under ----------------- this Section 8.01hereto, the Indemnifying Party may (unless such party (the "Indemnified Party"Indemnitee elects not to seek indemnity hereunder for such claim) but shall give not be obligated to, upon written ------------ ----------------- notice to the other party (relevant Indemnitee, assume the "Indemnifying Party") after receiving written ------------------ notice defense of any action, lawsuit, proceeding, investigation such claim or other claim against it (Proceeding if by a third party) or discovering the liability, obligation or facts giving rise Indemnifying Party with respect to such claim for indemnificationor Proceeding acknowledges to the Indemnitee the Indemnitee's right to indemnity pursuant hereto to the extent provided herein (as such claim may have been modified through written agreement of the parties); provided, describing the claimhowever, the amount thereof (if known and quantifiable), and the basis thereof; provided that the -------- failure nothing set forth herein shall be deemed to so notify require the Indemnifying Party shall not relieve to waive any crossclaims or counterclaims the Indemnifying Party of its or his obligations hereunder except to the extent such failure shall may have prejudiced the Indemnifying Party. In that regard, if any action, lawsuit, proceeding, investigation or other claim shall be brought or asserted by any third party which, if adversely determined, would entitle against the Indemnified Party to indemnity pursuant to this Section 8.01, the for damages. The Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in the defense of such actionretain separate counsel, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have determine, upon the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereofwritten advice of counsel, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, that an actual or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a potential conflict of interest exists between the Indemnifying Party and the Indemnified PartyParty in connection with such Proceeding. The Indemnifying Party shall be obligated to pay the reasonable fees and expenses of such separate counsel to the extent the Indemnified Party is entitled to indemnification by the Indemnifying Party with respect to such claim or Proceeding under this Section 8(d). If the Indemnifying Party assumes the defense of any such claim or Proceeding, the Indemnifying Party shall select counsel reasonably acceptable to such Indemnitee to conduct the defense of such claim or Proceeding, shall take all steps necessary in the defense or settlement thereof and shall at all times diligently and promptly pursue the resolution thereof. If the Indemnifying Party shall control have assumed the defense of any such claimclaim or Proceeding in accordance with this Section 8(d), the Indemnifying Party shall obtain be authorized to consent to a settlement of, or the entry of any judgment arising from, any such claim or Proceeding, with the prior written consent of such Indemnitee, not to be unreasonably withheld; provided, however, that the Indemnified Indemnifying Party (which shall not be unreasonably withheld) before entering into authorized to encumber any of the assets of any Indemnitee or to agree to any restriction that would apply to any Indemnitee or to its conduct of business; and provided further, that a condition to any such settlement of shall be a claim or ceasing to defend such claim, if pursuant to or as a result complete release of such settlement or cessationIndemnitee and its Affiliates, 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 directors, officers, employees and obligations agents with respect to such claim, without prejudiceincluding any reasonably foreseeable collateral consequences thereof. Such Indemnitee shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. Each Indemnitee shall, and shall cause each of its Affiliates, directors, officers, employees and agents to, cooperate fully with the Indemnifying Party in the defense of any claim or Proceeding being defended by the Indemnifying Party pursuant to this Section 8(d). If the Indemnifying Party does not assume the defense of any claim or Proceeding resulting therefrom in accordance with the terms of this Section 8(d), such Indemnitee may defend against such claim or Proceeding in such manner as it may deem appropriate, including settling such claim or Proceeding after giving notice of the same to the Indemnifying Party, on such terms as such Indemnitee may deem appropriate. If any Indemnifying Party seeks to question the manner in which such Indemnitee defended such claim or Proceeding or the amount of or nature of any such settlement, such Indemnifying Party shall have the burden to prove by a preponderance of the evidence that such Indemnitee did not defend such claim or Proceeding in a reasonably prudent manner.
Appears in 1 contract
Samples: Stock Purchase and Investor Rights Agreement (Gateway Co Inc)
Defense of Claims. If a party hereto seeks indemnification under ----------------- this Section 8.01, such party (the "An Indemnified Party") Party shall give the Indemnifying Party written ------------ ----------------- notice to the other party (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, suit or demand (a "Claim") of which such Indemnified Party has knowledge and as to which it may request indemnification hereunder, within sixty (60) days of such determination, stating the amount thereof (of the Loss, if known and quantifiable)known, method of computation thereof, and in reasonable detail the factual basis thereof; provided that of such Claim with a reference to the -------- failure to so notify provisions of this Agreement in respect of which such right of indemnification is claimed or arises. The obligations and Liabilities of the Indemnifying Party under this Article VIII with respect to Losses arising from claims of any third party that are subject to the indemnification provided for in this Article VIII ("Third Party Claims") shall be governed by and be contingent upon the following additional terms and conditions: if an Indemnified Party shall receive notice of any Third Party Claim, the Indemnified Party shall give the Indemnifying Party written notice of such Third Party Claim within thirty (30) days of the receipt by the Indemnified Party of notice of such Third Party Claim; provided, however, that the failure to provide such notice to the Indemnifying Party shall not release the Indemnifying Party from any of its obligations under this Article VIII except to the extent that the Indemnifying Party is materially prejudiced by such failure and shall not relieve the Indemnifying Party of its from any other obligation or his obligations hereunder except Liability that it may have to the extent such failure shall have prejudiced any Indemnified Party otherwise than under this Article VIII. If the Indemnifying Party. In that regard, if any action, lawsuit, proceeding, investigation or other claim shall be brought or asserted by any third party which, if adversely determined, would entitle Party acknowledges in writing its obligation to indemnify the Indemnified Party to indemnity pursuant to this Section 8.01hereunder against any Losses that may result from such Third Party Claim, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and then the Indemnifying Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense of such Third Party Claim at its expense and elects through counsel of its choice if it gives notice of its intention to do soso to the Indemnified Party within ten (10) days of the receipt of such notice from the Indemnified Party; provided, however, if such Claim seeks an injunction or other equitable relief against the Indemnified Party, subject to the last sentence of this Section 8.3, the Indemnified Party shall have the right to employ participate in and jointly control the defense of any portion of such Claim and to retain its own counsel separate from in each jurisdiction for which the Indemnified Party determines counsel employed by is required, which counsel shall be reasonably acceptable to the Indemnifying Party, at the expense of the Indemnifying Party. In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party's expense, all witnesses, pertinent records, materials and information in the Indemnified Party's possession or under the Indemnified Party's control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such action Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party's expense, all such witnesses, records, materials and information in the Indemnifying Party's possession or under the Indemnifying Party's control relating thereto as is reasonably required by the Indemnified Party. If the Indemnifying Party elects and is entitled to compromise or defend such Claim, it shall within thirty (30) days (or sooner, if the nature of the Claim so requires) notify the Indemnified Party of its intent to do so. The Indemnified Party shall have the right to employ separate counsel in any such Claim and participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (ai) the employment thereof has been specifically authorized by the Indemnifying Party in writing, shall fail to assume the defense of such Claim as provided herein or (bii) the Indemnified Party has shall have been advised by legal such counsel that a reasonable likelihood exists of there is or is likely to develop a conflict of interest between for counsel in representing both the indemnifying party and the indemnified party with respect to such Claim in which case the fees and expenses of counsel shall be borne by the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control elects not to compromise or defend such Claim or fails to notify the defense Indemnified Party of any its election as herein provided, the Indemnified Party may pay, compromise or defend such claimClaim at the Indemnifying Party's expense, subject to the limitations set forth in this Article VIII. Except as set forth in the immediately preceding sentence, the Indemnifying Party shall obtain have no indemnification obligations with respect to any such Claim which shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed). The Indemnifying Party's right to direct the defense, if applicable, shall include the right to compromise or enter into an agreement settling any Claim by a third party; provided, that no such compromise or settlement shall be entered into without the prior written consent of the Indemnified Party (which shall not may be unreasonably withheld in its sole discretion /unreasonably withheld) before entering into any (i) if such compromise or settlement provides for injunctive or other nonmonetary or equitable relief affecting the Indemnified Party or (ii) if such compromise or settlement does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnified Party of a claim or ceasing general release from any and all liability with respect to defend such claimClaim. Notwithstanding the foregoing, if pursuant in the event that the Indemnified Party withholds its consent to or a settlement proposal that involves nothing other than the payment of monetary damages for which the Indemnifying Party will be responsible, the Indemnified Party shall indemnify and hold harmless the Indemnifying Party against any Losses suffered by the Indemnifying Party as a result of the Indemnified Party's withholding of its consent to such settlement or cessation, injunction or other equitable relief proposal. The Indemnifying Party will make promptly any payment required to be imposed against made by it to the Indemnified Party or if such settlement does not expressly unconditionally release the Indemnified Party from all liabilities and obligations with respect to such claim, without prejudiceunder this Article VIII.
Appears in 1 contract
Samples: Asset Purchase Option Agreement (Protein Polymer Technologies Inc)
Defense of Claims. If a party hereto seeks indemnification under ----------------- this Section 8.01, such party (the "Third Party Claim is made against a Purchase and Sale Indemnified Party", (a) Transferor will be entitled to participate in the defense thereof and, (b) if it so chooses, to assume the defense thereof with counsel selected by Transferor; provided that, in connection with such assumption (i) such counsel is not reasonably objected to by the Purchase and Sale Indemnified Party, (ii) no material conflict of interest shall give written ------------ ----------------- notice to the other party (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 exist in relation to such claim for indemnification, describing the claim, the amount thereof (if known Third Party Claim between such Purchase and quantifiable)Sale Indemnified Party and Transferor, and (iii) Transferor, first admits in writing its liability to indemnify the basis thereof; provided that the -------- failure Purchase and Sale Indemnified Party with respect to so notify the Indemnifying Party shall not relieve the Indemnifying Party all elements of its or his obligations hereunder except such claim in full to the extent such failure shall have prejudiced claim is valid. Should Transferor so elect to assume the Indemnifying Party. In that regarddefense of a Third Party Claim, if any action, lawsuit, proceeding, investigation or other claim shall Transferor will not be brought or asserted by any third party which, if adversely determined, would entitle liable to the Purchase and Sale Indemnified Party for any legal expenses subsequently incurred by the Purchase and Sale Indemnified Party in connection with the defense thereof. If Transferor elects to indemnity pursuant to this Section 8.01assume the defense of a Third Party Claim, the Purchase and Sale Indemnified Party will (i) cooperate in all reasonable respects with Transferor in connection with such defense and (ii) not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without Transferor's prior written consent, as the case may be. If Transferor shall ------------ promptly notify assume the Indemnifying defense of any Third Party of Claim, the same in writing, specifying in detail the basis of such claim Purchase and the facts pertaining thereto and the Indemnifying Sale Indemnified Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth belowbut not control) shall be entitled to appoint lead counsel of such defense with reputable its own counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defendat its own expense. If the Indemnifying Party is permitted to Transferor does not assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any such claimThird Party Claim, the Indemnifying Party shall obtain the prior written consent of the Purchase and Sale Indemnified Party (which may defend the same in such manner as it may deem appropriate, including settling such claim or litigation after giving prompt notice to Transferor of such terms and, Transferor will promptly reimburse the Purchase and Sale Indemnified Party upon written request. Anything contained in this Agreement to the contrary notwithstanding, Transferor shall not be unreasonably withheld) before entering into entitled to assume the defense of any settlement part of a claim or ceasing to defend such claim, if pursuant to or as a result of such settlement or cessationThird Party Claim that seeks an order, injunction or other equitable relief will be imposed or relief for other than money damages against the Purchase and Sale Indemnified Party or if such settlement does not expressly unconditionally release the Indemnified Party from all liabilities and obligations with respect to such claim, without prejudiceParty.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Charming Shoppes Inc)
Defense of Claims. If a party hereto seeks indemnification under ----------------- this Section 8.01any legal proceeding shall be instituted, such party or any claim or demand made, against any Purchaser Indemnified Party or any Company or Corindus Indemnified Party (the each an "Indemnified Party") shall give written ------------ ----------------- notice in respect of which the Company, Corindus or the Purchaser may be liable hereunder (such Party, in such circumstance, being referred to the other party (herein as the "Indemnifying Party") after receiving ), such Indemnified Party shall give prompt 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 (if known and quantifiable)the "Claim Notice") to the Indemnifying Party; provided, and the basis thereof; provided that the -------- failure to any delay in so notify notifying the Indemnifying Party shall not relieve the Indemnifying Party of its or his obligations hereunder except only to the extent, if at all, that it is prejudiced by reason of such delay. The Indemnifying Party shall have the right to defend any litigation, action, suit, demand or claim for which indemnification is sought (a "Proceeding") and, to the extent such failure shall have prejudiced the Indemnifying Party. In that regard, if any action, lawsuit, proceeding, investigation or other claim shall be brought or asserted it elects to do so by any third party which, if adversely determined, would entitle written notice to the Indemnified Party to indemnity pursuant to this Section 8.01Party, assume and pay the Indemnified Party shall ------------ promptly notify the Indemnifying Party expenses of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead Proceeding with counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) . In no event shall any Indemnified Party be required to make any expenditure or bring any cause of action to enforce the Indemnifying Party's obligations and liability under and pursuant to which this Section 6. Except as specifically provided below, after notice by the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating of its election to assume the defense of such claim; and
(ii) 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 Proceeding, the Indemnifying Party shall not have the right not, as long as it diligently conducts such defense, be liable 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental under this Section 6 for any fees of other counsel or any other expenses with respect to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the of such Proceeding. The Indemnified Party shall have the right to employ separate counsel separate from counsel employed by the Indemnifying Party in any such action of the foregoing Proceedings and to participate in the defense thereof, but the reasonable fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel shall reasonably and in good faith determine, upon the written advice of counsel, that a reasonable likelihood there exists of a conflict actual or potential conflicts of interest between which make representation by the Indemnifying Party and same counsel inappropriate. In a case specified in the Indemnified Party. If the Indemnifying Party shall control the defense of any such claimimmediately preceding sentence, the Indemnifying Party shall obtain not be obligated to pay the prior written consent reasonable fees and expenses of more than one counsel for all such Indemnified Parties. In the event that, within twenty days after receiving a Claim Notice, the Indemnifying Party fails to notify the Indemnified Party (that it elects to assume the defense, compromise or settlement of the Proceeding described in such Claim Notice, the Indemnified Party shall have the right to undertake the defense of such Proceeding for the account of and at the reasonable expense of the Indemnifying Party, subject to the right of the Indemnifying Party to assume the defense of such Proceeding with counsel reasonably satisfactory to the Indemnified Party at any time prior to the settlement, compromise or final determination thereof upon written notice to the Indemnified Party and upon immediate payment of all reasonable expenses theretofore incurred by the Indemnified Party in connection therewith. Anything in this Section 6 to the contrary notwithstanding, the Indemnifying Party shall not, without the Indemnified Party's prior written consent, which consent shall not be unreasonably withheld) before entering into withheld or delayed, settle or compromise any settlement Proceeding, or consent to the entry of a claim or ceasing any judgment with respect to defend such claimany Proceeding; provided, if pursuant to or as a result of such settlement or cessationhowever, injunction or other equitable relief will be imposed against that the Indemnifying Party may, without the Indemnified Party's prior written consent, settle or compromise any such Proceeding or consent to entry of any judgment with respect to any such Proceeding that requires solely the payment of money damages by the Indemnifying Party and that includes as an unconditional term thereof the release by the claimant or if such settlement does not expressly unconditionally release the plaintiff of the Indemnified Party from all liabilities liability in respect of such Proceeding. If the Indemnified Party takes over and obligations with respect to such claimassumes control of any Proceeding, the Indemnified Party shall not, without prejudicethe Indemnifying Party's prior written consent, which consent shall not be unreasonably withheld or delayed, settle or compromise any Proceeding, or consent to entry of any judgment. The Indemnified Party shall cooperate, and shall use its reasonable best efforts to cause its employees and the employees of any of its respective affiliates to cooperate with the Indemnifying Party in the defense of any Proceeding assumed by the Indemnifying Party.
Appears in 1 contract
Samples: Stock Purchase Agreement (Your Internet Defender, Inc)
Defense of Claims. (a) If any Indemnitee receives notice of the assertion of any claim or of the commencement of any action or proceeding by any Person or Governmental Entity that is not a party hereto seeks to this Agreement (a “Third Party Claim”) against such Indemnitee, with respect to which an Indemnifying Party is obligated to provide indemnification under ----------------- this Section 8.01Agreement, the Indemnitee will give such party (the "Indemnified Party") shall give Indemnifying Party reasonably prompt written ------------ ----------------- notice to the other party (the "Indemnifying Party") thereof, but in any event not later than 20 calendar days after receiving written ------------------ receipt of notice of any actionsuch Third Party Claim; provided, lawsuithowever, 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 (if known and quantifiable), and the basis thereof; provided that the -------- failure of the Indemnitee to so notify the Indemnifying Party shall not will only relieve the Indemnifying Party of from its or his obligations hereunder except obligation to indemnify the Indemnitee pursuant to this Article XIII to the extent such failure shall have prejudiced the Indemnifying Party. In that regard, if any 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) furnish the Indemnified Party with reasonable evidence that the Indemnifying Party is and 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 will be able entitled, upon written notice to satisfy 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 will have no right to assume or continue the defense of any such liability; Third Party Claim (and provided further the Indemnitee will have the exclusive right to defend it) if: (i) the Indemnitee reasonably determines that the Indemnifying Party shall does not have the right sufficient financial resources to -------- ------- assume control defend or discharge such Third Party Claim; (ii) if a conflict of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party, if the claim which interest is presented for the Indemnifying Party seeks to assume control (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which from defense of the Indemnified Third Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, Claim; or (Diii) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted 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 control the defense and elects to do soof any Third Party Claim, the Indemnified Party shall Indemnitee will have the right to employ one separate counsel (plus one separate from counsel employed by the Indemnifying Party in any such action local counsel) and to participate in the investigation and defense thereof; provided, but however, that the Indemnitee will pay the reasonable fees and expenses disbursements of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Partyseparate counsel. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall obtain Without the prior written consent of the Indemnified Indemnitee, the Indemnifying Party (which shall will not be unreasonably withheld) before entering enter into any settlement of a claim any Third Party Claim that would lead to liability or ceasing to defend create any financial or other obligation on the part of the Indemnitee unless such claim, if pursuant to or settlement includes as a result an unconditional term thereof the release of the Indemnitee from all liability in respect of such settlement or cessation, injunction or other equitable relief Third Party Claim.
(b) Any claim by an Indemnitee on account of an Indemnifiable Loss that does not result from a Third Party Claim will be imposed against asserted by giving the Indemnified Indemnifying Party or if such settlement does not expressly unconditionally release reasonably prompt written notice thereof and the Indemnified Indemnifying Party from all liabilities and obligations with respect will have a period of 30 calendar days within which to respond in writing to such claim.
(c) If, without prejudiceafter 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 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 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, 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 effect of any other provision of this Article XIII 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 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 hereto seeks Party to this 18 Agreement or any Affiliate of a Party to this Agreement (a “Third Party Claim”) with respect to which indemnification under ----------------- this Section 8.01is to be sought from an Indemnifying Party, such party (the "Indemnified Party") following terms and provisions shall apply:
9.1.8.1 The Indemnitee shall give written ------------ ----------------- notice to the other party (the "Indemnifying Party") after receiving written ------------------ notice Party of any action, lawsuit, proceeding, investigation or other claim against it (if by a third party) or discovering the liability, obligation or facts giving Third Party Claim which might give rise to such a claim for indemnification, describing which notice shall state the claimnature 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 prejudiced by such delay and then only to the extent so prejudiced.
9.1.8.2 If any Third Party Claim is brought against an Indemnitee with respect to which the Indemnifying Party may have an obligation to indemnify, the amount thereof Third Party Claim shall be defended by the Indemnifying Party and such defense shall include all proceedings and appeals which counsel for the Indemnitee shall deem reasonably appropriate.
9.1.8.3 Notwithstanding the provisions of the previous subsection, until the Indemnifying Party shall have assumed the defense of any such Third Party Claim, the defense shall be handled by the Indemnitee. Furthermore, (i) if known and quantifiable), and the basis thereofIndemnitee shall have reasonably concluded that there are likely to be defenses available to the Indemnitee that are different from or in addition to those available to the Indemnifying Party; provided (ii) if the Indemnifying Party fails to provide the Indemnitee with evidence reasonably acceptable to the Indemnitee that the -------- failure Indemnifying Party has sufficient financial resources to so notify 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 Business; or (v) if a judgment against the Indemnitee will, in the good faith opinion of the Indemnitee, establish a custom or precedent which will be adverse to the best interests of its continuing business, the Indemnifying Party shall not relieve be entitled to assume the Indemnifying defense of the Third Party of its or his obligations hereunder except to Claim and the extent such failure shall have prejudiced the Indemnifying Party. In that regard, if any action, lawsuit, proceeding, investigation or other claim defense shall be brought or asserted handled by any third party which, if adversely determined, would entitle the Indemnified Party to indemnity pursuant to this Section 8.01, Indemnitee. If the Indemnified Party shall ------------ promptly notify the Indemnifying Party defense of the same in writingThird Party Claim is handled by the Indemnitee under the provisions of this subsection, specifying in detail the basis of such claim and the facts pertaining thereto and 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 Section 8.9 that also trigger indemnification obligations under this Section 9 shall be entitled to participate in defended utilizing a joint defense between Seller and Buyer, with Seller, as the defense Indemnifying Party, paying all costs of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to joint defense.
9.1.8.4 In any Third Party Claim defended by the Indemnifying -------- Party's right to assume control of such defense, it must first:
Party (i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party Indemnitee shall have the right to employ be represented by advisory counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereofaccountants, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless its own expense, (aii) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control keep the defense Indemnitee fully informed as to the status of any such claimThird Party Claim at all stages thereof, whether or not the Indemnitee is represented by its own counsel, (iii) the Indemnifying Party shall obtain make available to the Indemnitee, and its attorneys, accountants and other representatives, all books and records of the Indemnifying Party relating to such Third Party Claim and (iv) the parties shall render to each other such assistance as may be reasonably required in order to ensure the proper and adequate defense of the Third Party Claim.
9.1.8.5 In any Third Party Claim, the party defending the same shall not make any settlement of any claim without the prior written consent of the Indemnified Party (other party, which consent shall not be unreasonably withheld) before entering into any , delayed or conditioned. Without limiting the generality of the foregoing, it shall not be deemed unreasonable to withhold consent to a settlement of a claim or ceasing to defend such claim, if pursuant to or as a result of such settlement or cessation, injunction involving injunctive or other equitable relief against the Indemnitee or its assets, employees or business, or relief which the Indemnitee reasonably believes could establish a custom or precedent which will be imposed against adverse to the Indemnified Party or if such settlement does not expressly unconditionally release the Indemnified Party from all liabilities and obligations with respect to such claim, without prejudicebest interests of its continuing business.
Appears in 1 contract
Samples: Asset Purchase Agreement
Defense of Claims. If any 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 hereto seeks Party to this Agreement or any Affiliate of a Party to this Agreement (a “Third Party Claim”) with respect to which indemnification under ----------------- this Section 8.01is to be sought from an Indemnifying Party, such party (the "Indemnified Party") following terms and provisions shall apply:
9.1.8.1 The Indemnitee shall give written ------------ ----------------- notice to the other party (the "Indemnifying Party") after receiving written ------------------ notice Party of any action, lawsuit, proceeding, investigation or other claim against it (if by a third party) or discovering the liability, obligation or facts giving Third Party Claim which might give rise to such a claim for indemnification, describing which notice shall state the claimnature 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 prejudiced by such delay and then only to the extent so prejudiced.
9.1.8.2 If any Third Party Claim is brought against an Indemnitee with respect to which the Indemnifying Party may have an obligation to indemnify, the amount thereof Third Party Claim shall be defended by the Indemnifying Party and such defense shall include all proceedings and appeals which counsel for the Indemnitee shall deem reasonably appropriate.
9.1.8.3 Notwithstanding the provisions of the previous subsection, until the Indemnifying Party shall have assumed the defense of any such Third Party Claim, the defense shall be handled by the Indemnitee. Furthermore, (i) if known and quantifiable), and the basis thereofIndemnitee shall have reasonably concluded that there are likely to be defenses available to the Indemnitee that are different from or in addition to those available to the Indemnifying Party; provided (ii) if the Indemnifying Party fails to provide the Indemnitee with evidence reasonably acceptable to the Indemnitee that the -------- failure Indemnifying Party has sufficient financial resources to so notify 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 Business; or (v) if a judgment against the Indemnitee will, in the good faith opinion of the Indemnitee, establish a custom or precedent which will be adverse to the best interests of its continuing business, the Indemnifying Party shall not relieve be entitled to assume the Indemnifying defense of the Third Party of its or his obligations hereunder except to Claim and the extent such failure shall have prejudiced the Indemnifying Party. In that regard, if any action, lawsuit, proceeding, investigation or other claim defense shall be brought or asserted handled by any third party which, if adversely determined, would entitle the Indemnified Party to indemnity pursuant to this Section 8.01, Indemnitee. If the Indemnified Party shall ------------ promptly notify the Indemnifying Party defense of the same in writingThird Party Claim is handled by the Indemnitee under the provisions of this subsection, specifying in detail the basis of such claim and the facts pertaining thereto and 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 Section 8.9 that also trigger indemnification obligations under this Section 9 shall be entitled to participate in defended utilizing a joint defense between Seller and Buyer, with Seller, as the defense Indemnifying Party, paying all costs of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to joint defense.
9.1.8.4 In any Third Party Claim defended by the Indemnifying -------- Party's right to assume control of such defense, it must first:
Party (i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party Indemnitee shall have the right to employ be represented by advisory counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereofaccountants, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless its own expense, (aii) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control keep the defense Indemnitee fully informed as to the status of any such claimThird Party Claim at all stages thereof, whether or not the Indemnitee is represented by its own counsel, (iii) the Indemnifying Party shall obtain make available to the Indemnitee, and its attorneys, accountants and other representatives, all books and records of the Indemnifying Party relating to such Third Party Claim and (iv) the parties shall render to each other such assistance as may be reasonably required in order to ensure the proper and adequate defense of the Third Party Claim.
9.1.8.5 In any Third Party Claim, the party defending the same shall not make any settlement of any claim without the prior written consent of the Indemnified Party (other party, which consent shall not be unreasonably withheld) before entering into any , delayed or conditioned. Without limiting the generality of the foregoing, it shall not be deemed unreasonable to withhold consent to a settlement of a claim or ceasing to defend such claim, if pursuant to or as a result of such settlement or cessation, injunction involving injunctive or other equitable relief against the Indemnitee or its assets, employees or business, or relief which the Indemnitee reasonably believes could establish a custom or precedent which will be imposed against adverse to the Indemnified Party or if such settlement does not expressly unconditionally release the Indemnified Party from all liabilities and obligations with respect to such claim, without prejudicebest interests of its continuing business.
Appears in 1 contract
Defense of Claims. (a) If a party hereto seeks indemnification under ----------------- this Section 8.01, such party (the "Indemnified Party") shall give written ------------ ----------------- notice to the other party (the "Indemnifying Party") after receiving written ------------------ notice of any action, lawsuit, proceeding, investigation claim or other claim against it (if Action by a third party) or discovering party arises after the liabilitydate hereof for which an Indemnifying Party may be liable under the terms of this Agreement, obligation or facts giving rise to such claim for indemnification, describing then the claim, the amount thereof (if known and quantifiable), and the basis thereof; provided that the -------- failure to so Indemnified Party shall notify the Indemnifying Party (with Seller acting as agent for each Shareholder for purposes of any such claim or Action) within a reasonable time after such claim or Action arises and is known to the Indemnified Party, and shall not relieve give the Indemnifying Party a reasonable opportunity:
(i) to conduct any proceedings or negotiations in connection therewith and necessary or appropriate to defend the Indemnified Party;
(ii) to take all other required steps or proceedings to settle or defend any such claim or Action; and
(iii) to employ counsel to contest any such claim or Action in the name of its the Indemnified Party or his obligations hereunder except otherwise. The expenses of all proceedings, contests or lawsuits with respect to the extent such failure claims or Actions shall have prejudiced be borne by the Indemnifying Party. In that regardIf the Indemnifying Party wishes to assume the defense of such claim or Action, if any action, lawsuit, proceeding, investigation or other claim then the Indemnifying Party shall be brought or asserted by any third party which, if adversely determined, would entitle give written notice to the Indemnified Party to indemnity pursuant to this Section 8.01, within 30 days after notice from the Indemnified Party shall ------------ promptly notify of such claim or Action (unless the claim or action reasonably requires a response in less than 30 days after the notice is given to the Indemnifying Party, in which event the Indemnifying Party of shall notify the same in writingIndemnified Party at least 10 days prior to such reasonably required response date), specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in thereafter assume the defense of any such actionclaim or liability, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable through counsel reasonably acceptable satisfactory to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with that the Indemnified Party (may participate in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defendat its own expense. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the The Indemnified Party shall have the right to employ counsel separate from counsel employed by control the defense of the claim or Action unless and until the Indemnifying Party shall (i) assume the defense of such claim or Action, and (ii) acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated under the terms of its indemnity hereunder to the Indemnified Party in connection with such claim or Action.
(b) If the Indemnifying Party does not assume the defense of, or if after so assuming the Indemnifying Party fails to defend, any such action and to claim or Action, then the Indemnified Party may defend against such claim or Action in such manner as such Indemnified Party may deem appropriate (provided that the Indemnifying Party may participate in such defense at its own expense) provided that the defense thereofIndemnified Party may not settle such claim or Action without the Indemnifying Party's prior written consent, but which will not be unreasonably withheld, and the fees Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of all expenses, legal and expenses of such counsel employed otherwise, reasonably and necessarily incurred by the Indemnified Party shall be at in connection with the expense defense against and settlement of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, such claim or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified PartyAction. If the Indemnifying Party shall control the defense no settlement of any such claimclaim or Action is made, the Indemnifying Party shall obtain the prior written consent of satisfy any judgment rendered with respect to such claim or in such Action, before the Indemnified Party (which shall not be unreasonably withheld) before entering into any settlement is required to do so, and pay all expenses, legal or otherwise, reasonably and necessarily incurred by the Indemnified Party in the defense of a such claim or ceasing to defend such claim, if pursuant to or as a result of such settlement or cessation, injunction or other equitable relief will be imposed Action.
(c) If an Order is rendered against the Indemnified Party in any Action covered by the indemnification hereunder, or if any Lien in respect of such settlement does not expressly unconditionally release Order attaches to any of the assets of the Indemnified Party, the Indemnifying Party shall immediately upon such entry or attachment pay any amount required by such Order in full or discharge such Lien unless, at the expense and request of the Indemnifying Party, an appeal is taken under which the execution of the Order or satisfaction of the Lien is stayed. If and when a final Order is rendered in any such Action, the Indemnifying Party shall forthwith pay any amount required by such Order or discharge such Lien before the Indemnified Party from all liabilities is compelled to do so.
(d) If any claim for Indemnified Losses or Seller Indemnified Losses that does not relate to claim or Action by a third party arises after the date hereof, the Indemnified Party shall provide written notice thereof to the Indemnifying Party. The amount and obligations with respect to liability for such claim shall be deemed final unless the Indemnifying Party notifies the Indemnified Party in writing within forty-five (45) days of its receipt of such written notice that it disputes such claim. Until such claim becomes final or is resolved, without prejudicePurchaser shall have the right to withhold the amount of such claim from any payments due to either Shareholder under the First Consulting Agreement or the Second Consulting Agreement, as the case may be. The Indemnifying Party shall pay or reimburse the Indemnified Party for any such Indemnified Loss or Seller Indemnified Losses, as the case may be, within thirty (30) days after such loss is deemed final.
Appears in 1 contract
Samples: Purchase and Sale Agreement (New Pameco Georgia Corp)
Defense of Claims. If a party hereto seeks indemnification under ----------------- this Section 8.01, such party (the "Indemnified Party"a) shall give written ------------ ----------------- notice to the other party (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 (if known and quantifiable), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party shall not relieve 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 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto The Indemnitee and the Indemnifying Party shall be entitled use its best efforts to cooperate in the defense or compromise of any Claim in a manner reasonably calculated to minimize the liability of the Indemnifying Party under Section 7.
(b) If the Indemnifying Party, or any insurance carrier of such Indemnifying Party, agrees to assume the defense of Indemnitee with respect to such Claim, from and after the date of such assumption, the Indemnifying Party shall have no further liability for counsel fees or expenses of separate counsel of the Indemnitee; provided that in such case such Indemnitee shall retain the right to employ its own counsel and to participate in the defense of any Claim, but such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, Indemnitee shall bear and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel solely responsible for its own costs and expenses in connection with such participation.
(c) In the case of such defense with reputable counsel reasonably acceptable an assumption, the Indemnifying Party shall have the authority to the Indemnified Party; negotiate, compromise and settle such Claim, provided that, as a condition precedent to unless the Indemnifying -------- Party's right to assume control relevant Indemnitee shall have previously agreed otherwise in writing (which agreement will not be unreasonably withheld or delayed), any compromise or settlement of such defenseClaim shall include a complete release of all other Claims by the third party bringing the Claim against such Indemnitee and provided further that, it must first:
(i) enter into an agreement with except for the Indemnified Party settlement of a Claim that involves the payment of money only (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which case the Indemnifying Party agrees shall give the Indemnitee the opportunity to be fully responsible for all Losses relating to discuss with it such claims and that it will provide full indemnification to payment, which opportunity shall not affect the Indemnified Party for all Losses relating to such claim; and
(ii) furnish the Indemnified Party with reasonable evidence that right of the Indemnifying Party is and will be able to satisfy any effect such liability; and provided further that settlement in its discretion without the Indemnitee's consent), the Indemnifying Party shall not have settle or compromise any claim without the right to -------- ------- assume control prior written consent of Indemnitee (which consent shall not be unreasonably withheld unless such defense and shall pay claims can diminish the fees and expenses value of counsel retained by the Indemnified PartyIndemnitee's business, if the claim in which the Indemnifying Party seeks to assume control (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would case such consent may be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate withheld in the defense thereofIndemnitee's sole discretion).
(d) The Indemnitee may compromise or settle any Claim against it at any time, but the fees and expenses of if such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, compromise or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall obtain settlement is made without the prior written consent of the Indemnified Indemnifying Party (which prior written consent may not be unreasonably withheld or delayed), the Indemnifying Party shall not be unreasonably withheld) before required to pay such Indemnitee in respect of any liability resulting from such compromise or settlement; provided, however, that if in the reasonable judgment of the Indemnitee it would be materially harmed or otherwise prejudiced by not entering into any a proposed settlement of a claim or ceasing compromise and the Indemnifying Party unreasonably withholds consent to defend such claim, if pursuant to or as a result of such settlement or cessationcompromise, injunction or other equitable relief will be imposed against the Indemnified Party or if Indemnitee may enter into such settlement does or compromise and such settlement or compromise shall not expressly unconditionally release be conclusive as to the Indemnified liability of the Indemnifying Party from all liabilities and obligations with respect to such claim, without prejudicethe Indemnitee.
Appears in 1 contract
Samples: Asset Purchase Agreement (Liberty Group Publishing Inc)
Defense of Claims. If a 34.4.1 The Indemnified Party shall have the right, but not the obligation, to contest, defend and litigate any claim, action, suit or proceeding by any third party hereto seeks indemnification under ----------------- this Section 8.01alleged or asserted against such Party in respect of, such party (the "Indemnified Party") shall give written ------------ ----------------- notice resulting from, related to the other party (the "Indemnifying Party") after receiving written ------------------ notice or arising out of any action, lawsuit, proceeding, investigation or other claim against matter for which it (if by a third party) or discovering the liability, obligation or facts giving rise is entitled to such claim for indemnification, describing the claim, the amount thereof (if known and quantifiable)be indemnified hereunder, and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party reasonable costs and expenses thereof shall not relieve the Indemnifying Party of its or his obligations hereunder except to the extent such failure shall have prejudiced be indemnified by the Indemnifying Party. In that regard, if any action, lawsuit, proceeding, investigation or other claim shall be brought or asserted by any third party which, if adversely determined, would entitle If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party in respect of loss to indemnity pursuant to the full extent provided by this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and Article 34 the Indemnifying Party shall be entitled to participate in the defense of such actionentitled, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expenseoption, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense of such claim, action, suit or proceeding, liabilities, payments and elects obligations at its expense and through the counsel of its choice; provided it gives prompt notice of its intention to do soso to the Indemnified Party and reimburses the Indemnified Party for the reasonable cost and expenses incurred by the Indemnified Party prior to the assumption by the Indemnifying Party of such defense. The Indemnifying Party shall not be entitled to settle or compromise any claim, demand, action, suit or proceeding without the prior written consent of the Indemnified Party, unless the Indemnifying Party provides such security to the Indemnified Party as shall be reasonably required by the Indemnified Party to secure the loss to be indemnified hereunder to the extent so compromised or settled.
34.4.2 If the Indemnifying Party has exercised its rights under Clause 34.3, the Indemnified Party shall not be entitled to settle or compromise any claim, action, suit or proceeding without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed).
34.4.3 If the Indemnifying Party exercises its rights under Clause 34.3, the Indemnified Party shall nevertheless have the right to employ its own counsel, and such counsel separate from counsel employed by the Indemnifying Party in any such action and to may participate in the defense thereofsuch Draft Concession Agreement action, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless Party, when and as incurred, unless:
(a) the employment thereof of counsel by such party has been specifically authorized in writing by the Indemnifying Party in writing, or Party; or
(b) the Indemnified Party has been advised by legal counsel shall have reasonably concluded that a reasonable likelihood exists of there may be a conflict of interest between the Indemnifying Party and the Indemnified Party. If Party in the conduct of the defense of such action; or
(c) the Indemnifying Party shall control not, in fact, have employed independent counsel reasonably satisfactory to the Indemnified Party, to assume the defense of any such claim, action and shall have been so notified by the Indemnified Party; or
(d) the Indemnified Party shall have reasonably concluded and specifically notified the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheld) before entering into any settlement of a claim or ceasing to defend such claim, if pursuant to or as a result of such settlement or cessation, 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 obligations with respect to such claim, without prejudice.either:
Appears in 1 contract
Samples: Concession Agreement
Defense of Claims. If a party hereto seeks indemnification under ----------------- this Section 8.01, such party (the "Indemnified Party") shall give written ------------ ----------------- notice In connection with any claim giving rise to the other party (the "Indemnifying Party") after receiving written ------------------ notice indemnity hereunder resulting from or arising out of any action, lawsuit, proceeding, investigation claim or other claim against it (if legal proceeding by a third party) or discovering , Parent shall give the liability, obligation or facts giving rise to such claim for indemnification, describing the claim, the amount thereof (if known and quantifiable), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party shall not relieve 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 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis Stockholders’ Representative prompt notice of such claim and the facts pertaining thereto Stockholders’ Representative on behalf of the Indemnifying Party at its cost and expense (the sole source of satisfaction of such cost and expense shall be the Escrow Account pursuant to the terms of the Escrow Agreement) and with counsel reasonably satisfactory to the Parent Indemnified Party may, upon written notice to the Parent Indemnified Party, assume the defense of any such claim or legal proceeding if (i) the Escrow Account is comprised of sufficient financial resources to defend against such third-party claim and fulfill the Parent Indemnified Party’s highest reasonably likely Losses with respect to such claim or legal proceeding, (ii) the third-party claim does not seek an injunction or other equitable relief against or adversely affecting a Parent Indemnified Party, (iii) the Indemnifying Party acknowledges in writing its obligation to indemnify the Parent Indemnified Party against any Losses that may result from the third-party claim (subject to the sufficiency of the funds in the Escrow Account), and (iv) the Indemnifying Party agrees in writing not to settle such claim or proceeding without the prior written consent of the Parent Indemnified Party, which consent shall not be unreasonably withheld. If the Stockholders’ Representative so assumes, the Parent Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel at its own expense; provided, however, that if there are one or more legal defenses available to the Parent Indemnified Party that conflict with those available to the Indemnifying Party, or the Indemnifying Party fails to take reasonable steps necessary to defend diligently the claim after receiving written notice from the Parent Indemnified Party that it reasonably believes that the Indemnifying Party has failed to do so, the Parent Indemnified Party may assume the defense of such claim; and provided, further, that the Parent Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Parent Indemnified Party assumes the defense of the claim, the Parent Indemnified Party shall be reimbursed out of the Escrow Account pursuant to the terms of the Escrow Agreement on a quarterly basis, provided a notice of such claim is first provided and resolved in accordance with Section 10.02, for reasonable fees and expenses of counsel retained by the Parent Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such actionclaim, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification with its counsel at its own expense; provided, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided thathowever, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 Parent Indemnified Party shall not have the right to -------- ------- assume control of such defense and shall pay the be reimbursed for fees and expenses of counsel retained by the Indemnified Party, if the claim which the Indemnifying Party seeks to assume control (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defendmore than one separate firm. If the Indemnifying Party is permitted thereafter seeks to assume and control question the defense and elects to do so, manner in which the Parent Indemnified Party shall have defended such third party claim or the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, amount or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense nature of any such claimsettlement, the Indemnifying Party shall obtain have the prior written consent burden to prove, by a preponderance of the evidence, that the Parent Indemnified Party (which shall did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation, to each other such assistance as they may reasonably require of each other and to cooperate in good faith with each other, including providing such documents and records as may be unreasonably withheld) before entering into any settlement of a claim or ceasing to defend such claim, if pursuant to or as a result pertinent and the time and attention of such settlement personnel as may reasonably be necessary, in order to ensure the proper and adequate defense of any action, suit or cessationproceeding, injunction whether 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 obligations with respect subject to such claim, without prejudiceindemnification hereunder.
Appears in 1 contract
Defense of Claims. If In connection with any claim that may give rise to indemnity under this Section 7 resulting from or arising out of any claim or Proceeding against an Indemnitee by a person or entity that is not a party hereto seeks indemnification under ----------------- this Section 8.01hereto, the Indemnifying Party may but shall not be obligated to (unless such party (the "Indemnified Party") shall give Indemnitee elects not to seek indemnity hereunder for such claim), upon written ------------ ----------------- notice to the other party (relevant Indemnitee, assume the "Indemnifying Party") after receiving written ------------------ notice defense of any action, lawsuit, proceeding, investigation such claim or other claim against it (proceeding if by a third party) or discovering the liability, obligation or facts giving rise Indemnifying Party with respect to such claim or Proceeding acknowledges to the Indemnitee the Indemnitee's right to indemnity pursuant hereto to the extent provided herein (as such claim may have been modified through written agreement of the parties or arbitration hereunder) and provides assurances, satisfactory to such Indemnitee, that the Indemnifying Party will be financially able to satisfy such claim to the extent provided herein if such claim or Proceeding is decided adversely; provided, however, that nothing set forth herein shall be deemed to require the Indemnifying Party to waive any crossclaims or counterclaims the Indemnifying Party may have against the Indemnified Party for indemnificationdamages. The Indemnified Party shall be entitled to retain separate counsel, describing reasonably acceptable to the claimIndemnifying Party, if the Indemnified Counsel shall determine, upon the written advice of counsel, that claims of or defenses available to the Indemnifying Party and the Indemnified Party in connection with such Proceeding may differ. The Indemnifying Party shall be obligated to pay the reasonable fees and expenses of such separate counsel to the extent the Indemnified Party is entitled to indemnification by the Indemnifying Party with respect to such claim or Proceeding under this Section 7.4. If the Indemnifying Party assumes the defense of any such claim or Proceeding, the amount Indemnifying Party shall select counsel reasonably acceptable to such Indemnitee to conduct the defense of such claim or Proceeding, shall take all steps necessary in the defense or settlement thereof (if known and quantifiable)shall at all times diligently and promptly pursue the resolution thereof. If the Indemnifying Party shall have assumed the defense of any claim or Proceeding in accordance with this Section 7.4, and the basis Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any such claim or Proceeding, but only with the prior written consent of such Indemnitee, which consent shall not be unreasonably withheld; provided, however, that the Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness thereof; provided provided, further, that the -------- failure to so notify the Indemnifying Party shall not relieve be authorized to encumber any of the Indemnifying Party assets of any Indemnitee or to agree to any restriction that would apply to any Indemnitee or to its or his obligations hereunder except conduct of business; and provided, further, that a condition to the extent any such failure shall have prejudiced the Indemnifying Party. In that regard, if any action, lawsuit, proceeding, investigation or other claim settlement shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Party to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis a complete release of such claim Indemnitee and the facts pertaining thereto its Affiliates, directors, officers, employees and the Indemnifying Party agents with respect to such claim, including any reasonably foreseeable collateral consequences thereof. Such Indemnitee shall be entitled to participate in (but not control) the defense of any such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at with its expense, own counsel and at its option (subject to the limitations set forth below) own expense. Each Indemnitee shall, and shall be entitled to appoint lead counsel cause each of such defense its Affiliates, directors, officers, employees and agents to, cooperate fully with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to in the Indemnified Party for all Losses relating to such claim; and
(ii) furnish the Indemnified Party with reasonable evidence that defense of any claim or Proceeding being defended by the Indemnifying Party is and will be able pursuant to satisfy any such liability; and provided further that the Indemnifying Party shall not have the right to -------- ------- assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party, if the claim which the Indemnifying Party seeks to assume control (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defendthis Section 7.4. If the Indemnifying Party is permitted to does not assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any claim or Proceeding resulting therefrom in accordance with the terms of this Section 7.4, such claimIndemnitee may defend against such claim or Proceeding in such manner as it may deem appropriate, including settling such claim or proceeding after giving notice of the same to the Indemnifying Party shall obtain Party, on such terms as such Indemnitee may deem appropriate, but only with the prior written consent of the Indemnified Party (Indemnitee which consent shall not be unreasonably withheld) before entering into . If any settlement of a Indemnifying Party seeks to question the manner in which such Indemnitee defended such claim or ceasing Proceeding or the amount of or nature of any such settlement, such Indemnifying Party shall have the burden to prove by a preponderance of the evidence that such Indemnitee did not defend such claim, if pursuant to claim or as Proceeding in 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 obligations with respect to such claim, without prejudicereasonably prudent manner.
Appears in 1 contract
Defense of Claims. If a party hereto seeks In the case of any Claim for indemnification under ----------------- this Section 8.017.1, such Section 7.2 or Section 7.3 arising from a Claim of a third party (including the "Indemnified Party") shall IRS or any other Governmental Authority), an indemnified party must give prompt written ------------ ----------------- notice to the other indemnifying party (the "Indemnifying Party") after receiving written ------------------ notice of any actionClaim of which such indemnified party has Knowledge and as to which it may request indemnification hereunder, lawsuitwhich notice shall describe in reasonable detail the nature of the Claim, proceeding, investigation or other claim against it (if by a third party) or discovering an estimate of the liability, obligation or facts giving rise amount of Losses attributable to such claim for indemnificationClaim, describing the claim, the amount thereof (if known and quantifiable)determinable, and the basis thereof; provided that of the -------- indemnified party’s request for indemnification under this Agreement. The failure to so notify the Indemnifying Party shall not give such notice will not, however, relieve the Indemnifying Party indemnifying party of its or his indemnification obligations hereunder except to the extent that the indemnifying party is actually harmed thereby. The indemnifying party will have the right to defend and to direct the defense against any such failure shall have prejudiced Claim in its name and at its expense, and with counsel selected by the Indemnifying Partyindemnifying party unless: (A) the indemnifying party fails to acknowledge fully its obligations to the indemnified party(ies) under this Agreement within thirty (30) calendar days after receiving notice of such third party Claim; (B) the applicable third party claimant is a Governmental Authority or a then-current customer of the Buyer or the Company or any of their respective Affiliates; (C) the applicable third party alleges Fraud-Type Claims; (D) an adverse judgment with respect to the Claim will establish a precedent materially adverse to the continuing business interests of the Company, the Buyer or their respective Affiliates; (E) there is a material conflict of interest between the indemnified party and the indemnifying party in the conduct of such defense; (F) the third party Claim is criminal in nature, could reasonably be expected to lead to criminal proceedings and/or (G) the third party Claim seeks injunctive relief or other equitable remedies against the indemnified party(ies), including suspension or debarment, or if a Buyer Party is the indemnified party, seeks indemnification for amounts greater than the amounts remaining in the Escrow Account. In that regardIf the indemnifying party elects, and is entitled, to compromise or defend such Claim, it will within thirty (30) days (or sooner, if any 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 to indemnity pursuant to this Section 8.01, nature of the Indemnified Party shall ------------ promptly Claim so requires) notify the Indemnifying Party indemnified party of its intent to do so, and the indemnified party must, at the request and expense of the same in writingindemnifying party, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate cooperate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defendClaim. If the Indemnifying Party indemnifying party elects not to, or is permitted not entitled under this Section 7.6 to, compromise or defend such Claim, fails to assume and control notify the defense and elects indemnified party of its election as herein provided or refuses to do soacknowledge or contests its obligation to indemnify under this Agreement, the Indemnified Party shall indemnified party may pay, compromise or defend such Claim. Notwithstanding anything to the contrary contained herein, the indemnifying party will have the right no indemnification obligations with respect to employ counsel separate from counsel employed any such Claim which has been or will be settled by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall obtain indemnified party without the prior written consent of the Indemnified Party (which shall not be unreasonably withheld) before entering into any settlement of a claim or ceasing to defend such claim, if pursuant to or as a result of such settlement or cessation, 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 obligations with respect to such claim, without prejudice.the
Appears in 1 contract
Defense of Claims. If a party hereto seeks No right to indemnification under ----------------- this Section 8.01, such Article X shall be available to any party otherwise entitled to indemnification (the "Indemnified Party") shall give written ------------ ----------------- notice ), unless such Indemnified Party gives to the other party obligated to provide indemnification to such Indemnified Party (the "Indemnifying PartyIndemnitor") after receiving written ------------------ a notice of any action, lawsuit, proceeding, investigation or other claim against it (if by a third party"Claim Notice") or discovering describing in reasonable detail the liability, obligation or facts giving rise to any claim for indemnification hereunder promptly after the receipt of knowledge of the facts upon which such claim for indemnification, describing is based (but in no event later than ten (10) days prior to the claim, time any response to the amount thereof (if known and quantifiableasserted claim is required), and the basis thereof; provided except that the -------- failure of any Indemnified Party to so notify the Indemnifying Party shall Indemnitor will not relieve the Indemnifying Party of its or his obligations hereunder except Indemnitor from any liability it may have if and to the extent the Indemnitor is not prejudiced by such failure shall have prejudiced omission. Upon receipt by the Indemnifying Party. In that regardIndemnitor of a Claim Notice from an Indemnified Party with respect to any claim of a third party, such Indemnitor may control negotiations towards the resolution of any such claim without the necessity for litigation, and, if any actionlitigation ensues, lawsuit, proceeding, investigation or other claim shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Party to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in assume the defense of thereof at such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified PartyIndemnitor's claim for indemnification at its expense, cost and at its option (subject to the limitations set forth below) shall be entitled to appoint lead with counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims , and that it will provide full indemnification to the Indemnified Party for will extend reasonable cooperation in the defense or prosecution thereof and will furnish such records, information and testimony and attend all Losses relating to such claim; and
(ii) furnish the conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection therewith. 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ its own counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereofcase, but the fees and expenses of such counsel employed by the Indemnified Party shall will be at the expense of the Indemnified Party unless (ai) the employment thereof 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 there may be one or more legal defenses available to it, or to any other Indemnified Party who has been specifically authorized submitted a Claim Notice to the Indemnitor, which are different from or additional to those available to the Indemnitor, in either of which events such reasonable fees and expenses will be borne by the Indemnifying Party Indemnitor (but in writing, or (b) no event will the Indemnitor be required to pay the fees and expenses of more than one counsel employed by more than one Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party with respect to any claim) and the Indemnified Party. If Indemnitor will not have the Indemnifying Party shall control right to direct the defense of any such claim, the Indemnifying Party shall obtain the prior written consent action on behalf of the Indemnified Party. The Indemnitor will have the 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 shall not be unreasonably withheld) before entering into any settlement of a claim would or ceasing may result in liability 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 obligations with respect to such claimIndemnitor, respectively, without prejudicethe written consent of Indemnitee or Indemnitor, respectively.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Lodgenet Entertainment Corp)
Defense of Claims. If any 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 hereto seeks Party to this Agreement or any Affiliate of a Party to this Agreement (a “Third Party Claim”) with respect to which indemnification under ----------------- this Section 8.01is to be sought from an Indemnifying Party, such party (the "Indemnified Party") following terms and provisions shall apply:
8.1.8.1 The Indemnitee shall give written ------------ ----------------- notice to the other party (the "Indemnifying Party") after receiving written ------------------ notice Party of any action, lawsuit, proceeding, investigation or other claim against it (if by a third party) or discovering the liability, obligation or facts giving Third Party Claim which might give rise to such a claim for indemnification, describing which notice shall state the claimnature 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 prejudiced by such delay and then only to the extent so prejudiced.
8.1.8.2 If any Third Party Claim is brought against an Indemnitee with respect to which the Indemnifying Party may have an obligation to indemnify, the amount thereof Third Party Claim shall be defended by the Indemnifying Party and such defense shall include all proceedings and appeals which counsel for the Indemnitee shall deem reasonably appropriate.
8.1.8.3 Notwithstanding the provisions of the previous subsection, until the Indemnifying Party shall have assumed the defense of any such Third Party Claim, the defense shall be handled by the Indemnitee. Furthermore, (i) if known and quantifiable), and the basis thereofIndemnitee shall have reasonably concluded that there are likely to be defenses available to the Indemnitee that are different from or in addition to those available to the Indemnifying Party; provided (ii) if the Indemnifying Party fails to provide the Indemnitee with evidence reasonably acceptable to the Indemnitee that the -------- failure Indemnifying Party has sufficient financial resources to so notify 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 Business; or (v) if a judgment against the Indemnitee will, in the good faith opinion of the Indemnitee, establish a custom or precedent which will be adverse to the best interests of its continuing business, the Indemnifying Party shall not relieve be entitled to assume the Indemnifying defense of the Third Party of its or his obligations hereunder except to Claim and the extent such failure shall have prejudiced the Indemnifying Party. In that regard, if any action, lawsuit, proceeding, investigation or other claim defense shall be brought or asserted handled by any third party which, if adversely determined, would entitle the Indemnified Party to indemnity pursuant to this Section 8.01, Indemnitee. If the Indemnified Party shall ------------ promptly notify the Indemnifying Party defense of the same in writingThird Party Claim is handled by the Indemnitee under the provisions of this subsection, specifying in detail the basis of such claim and the facts pertaining thereto and 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 Section 7.14 that also trigger indemnification obligations under this Section 8 shall be entitled to participate in defended utilizing a joint defense between Seller and Buyer, with Seller, as the defense Indemnifying Party, paying all costs of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to joint defense.
8.1.8.4 In any Third Party Claim defended by the Indemnifying -------- Party's right to assume control of such defense, it must first:
Party (i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party Indemnitee shall have the right to employ be represented by advisory counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereofaccountants, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless its own expense, (aii) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control keep the defense Indemnitee fully informed as to the status of any such claimThird Party Claim at all stages thereof, whether or not the Indemnitee is represented by its own counsel, (iii) the Indemnifying Party shall obtain make available to the Indemnitee, and its attorneys, accountants and other representatives, all books and records of the Indemnifying Party relating to such Third Party Claim and (iv) the parties shall render to each other such assistance as may be reasonably required in order to ensure the proper and adequate defense of the Third Party Claim.
8.1.8.5 In any Third Party Claim, the party defending the same shall not make any settlement of any claim without the prior written consent of the Indemnified Party (other party, which consent shall not be unreasonably withheld) before entering into any , delayed or conditioned. Without limiting the generality of the foregoing, it shall not be deemed unreasonable to withhold consent to a settlement of a claim or ceasing to defend such claim, if pursuant to or as a result of such settlement or cessation, injunction involving injunctive or other equitable relief against the Indemnitee or its assets, employees or business, or relief which the Indemnitee reasonably believes could establish a custom or precedent which will be imposed against adverse to the Indemnified Party or if such settlement does not expressly unconditionally release the Indemnified Party from all liabilities and obligations with respect to such claim, without prejudicebest interests of its continuing business.
Appears in 1 contract
Defense of Claims. (a) If any Indemnitee receives notice of the assertion or commencement of any Third Party Claim made or brought by any Person who is not a party hereto seeks Party to this Agreement or any Affiliate of a Party to this Agreement with respect to which indemnification under ----------------- this Section 8.01is to be sought from an Indemnifying Party, such party (the "Indemnified Party") 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 notice of such Third Party Claim. Such notice shall describe the nature of the Third Party Claim in reasonable detail (as it is then known to the Indemnitee) 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 other party (Indemnitee, to elect to assume the "defense of any Third Party Claim at such Indemnifying Party") after receiving written ------------------ notice of any action’s expense and by such Indemnifying Party’s own counsel, 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 (if known and quantifiable), and the basis thereof; provided that the -------- failure counsel for the Indemnifying Party who shall conduct the defense of such Third Party Claim shall be reasonably satisfactory to so notify 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 or to participate in the defense of any Third Party Claim, the Indemnitee may compromise or settle such Third Party Claim over the objection of the Indemnifying Party, which settlement or compromise shall conclusively establish the Indemnifiable Loss for which the Indemnified Party may seek indemnification from the Indemnifying Party pursuant to this Agreement.
(b) (i) 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 8.4(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 (A) if the Indemnifying Party shall not relieve fail 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 of its or his obligations hereunder except has failed to the extent take such failure shall have prejudiced the Indemnifying Party. In that regard, if any 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 to indemnity pursuant to this Section 8.01steps, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto Indemnitee may assume its own defense and the Indemnifying Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible liable for all Losses relating to such claims reasonable expenses thereof and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal any financial or quasi-criminal allegations, (C) involves a claim other obligation of the Indemnitee is agreed to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any the course of defending such action and Third Party Claim, the Indemnitee must consent to participate in the defense thereof, but the fees and expenses incurrence of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheld) before entering into any settlement of a claim or ceasing to defend such claim, if pursuant to or as a result of such settlement or cessation, 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 obligations with respect to such claim, without prejudiceobligation.
Appears in 1 contract
Samples: Purchase Agreement (Macquarie Infrastructure CO LLC)
Defense of Claims. If a any legal proceedings shall be instituted or any claim is asserted by any third party in respect of which any party hereto seeks indemnification under ----------------- this Section 8.01may have an obligation to indemnify another party, the party asserting such party 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 thereof, but 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 (if known and quantifiable), and the basis thereof; provided that the -------- 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 of its or his obligations hereunder except to the extent such failure is actually prejudiced thereby. The Indemnifying Party shall have prejudiced 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. In that regard, if any action, lawsuit, proceeding, investigation or other claim shall be brought or asserted by any third party which, if adversely determined, would entitle Party (i) admits in writing its liability to the Indemnified Party hereunder with respect to indemnity pursuant such proceeding or claim; and (ii) furnishes satisfactory evidence of its financial ability to this Section 8.01, indemnify the Indemnified Party shall ------------ promptly notify Party, in which case, the Indemnifying Party of may assume such control at its expense through counsel reasonably satisfactory to such Indemnified Party; provided, however, that:
(a) the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Indemnified Party shall be entitled to participate in the defense of such actionclaim and to employ counsel at its own expense to assist in the handling of such claim; provided, lawsuithowever, proceeding, investigation or other claim giving rise to that the employment of such counsel shall be at the expense of the Indemnifying Party if the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel Party determines in good faith that such participation is appropriate in light of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent defenses not available to the Indemnifying -------- Party's right to assume control , conflicts of such defense, it must first:interest or other similar circumstances;
(ib) enter into an agreement with 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 (in form and substance reasonably satisfactory with such approval not to be unreasonably withheld);
(c) no Indemnifying Party shall consent to the Indemnified Party) pursuant 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 which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the each Indemnified Party for of a release from all Losses relating to liability in respect of such claim; and
(iid) furnish 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 reasonable evidence that the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party or (B) any claim relating to Taxes. After written notice by the Indemnifying Party is and will be able to satisfy the Indemnified Party of its election to assume control of the defense of any such liabilityaction, 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; and provided further provided, however, that the Indemnifying Party shall not have the right to -------- ------- assume control of be liable for such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party, Legal Expenses if the claim which the Indemnifying Party seeks to assume control (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental determines in good faith that the incurrence of the same is appropriate in light of defenses not available to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Indemnifying Party, the appropriate court rules that the Indemnifying Party failed conflicts of interest or is failing to vigorously prosecute or defendother similar circumstances. If the Indemnifying Party is permitted to does not assume and control of the defense and elects to do soof such claim as provided in this Section 7.3, the Indemnified Party shall have the right to employ counsel separate from counsel employed by defend such claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by will promptly reimburse the Indemnified Party therefor in accordance with this Section 7.3. The reimbursement of fees, costs and expenses required by this Section 7.3 shall be at made by periodic payments during the expense course of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writinginvestigations or defense, as and when bills are received or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheld) before entering into any settlement of a claim or ceasing to defend such claim, if pursuant to or as a result of such settlement or cessation, 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 obligations with respect to such claim, without prejudiceexpenses incurred.
Appears in 1 contract
Defense of Claims. If a party hereto seeks (a) Subject to Section 11.4(f), if any Indemnitee receives notice of assertion or commencement of any 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 in compliance with the notice provisions of Section 8.0111.4(i), but in any event not later than 30 calendar days after receipt of such party notice of such Third Party Claim. Such notice (the "Indemnified PartyThird Party Claim 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 give written ------------ ----------------- notice to the other party have 14 days from its receipt of a Third Party Claim Notice (the "Indemnifying PartyThird Party Claim Notice Period") after receiving written ------------------ notice to notify Indemnitee (i) whether the Indemnifying Party disputes the indemnitee's right 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 indemnification with respect to such claim for Third Party Claim, and (ii) if the Indemnifying Party does not dispute such right of indemnification, describing whether or not it desires to defend the claimIndemnitee against such Third Party Claim.
(b) If the Indemnifying Party notifies the Indemnitee within the Third Party Claim Notice Period that (i) the Indemnifying Party does not dispute the Indemnitee's right of indemnification and (ii) the Indemnifying Party desires to defend against such Third Party Claim and, if the stated amount thereof (if known of such Third Party Claim, together with all other previously resolved claims and quantifiable)pending claims for indemnification hereunder, and exceeds the basis thereof; provided that Indemnification Threshold, but is less than the -------- failure to so notify Indemnification Cap, then the Indemnifying Party shall not relieve 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 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects of such Third Party Claim by appropriate proceedings with counsel reasonably acceptable to do soIndemnitee, the Indemnified Party shall have the right to employ counsel separate from counsel employed by at the Indemnifying Party in any Party's sole cost and expense; provided that such action rights shall adhere and last only so long as (A) prior to participate in the defense thereof, but the fees and expenses of assuming such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party shall control the defense of any such claimdefense, the Indemnifying Party shall obtain notifies the prior written consent Indemnitee in writing within 30 days after the Indemnitee has given notice of the Indemnified Third Party claim that the Indemnifying Party will indemnify the Indemnitee from and against the entirety of any adverse consequences the Indemnitee may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim, (which shall not be unreasonably withheldB) before entering into any settlement of a claim or ceasing the Indemnifying Party provides the Indemnitee with evidence acceptable to the Indemnitee that the Indemnifying Party will have the financial resources to defend such claimagainst the Third Party Claim and fulfill its indemnification obligations hereunder, if pursuant to or as a result of such settlement or cessation, (C) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief will be imposed against the Indemnified Party relief, (D) settlement of, or if such settlement does not expressly unconditionally release the Indemnified Party from all liabilities and obligations an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnitee, likely to such claimestablish a precedential custom or practice materially adverse to the continuing business interests of the Indemnitee, without prejudice.and (E) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently and further provided that nothing in this proviso shall permit the Indemnification Cap (as described in and qualified by Sections 11.2(a) through 11.2(h))
Appears in 1 contract
Samples: Recapitalization, Redemption and Purchase Agreement (Lower Road Associates LLC)
Defense of Claims. (a) If any Indemnitee receives notice of the assertion of any claim or of the commencement of any action or proceeding by any Third Party (a party hereto seeks “Third Party Claim”) against such Indemnitee, with respect to which an Indemnifying Party is obligated to provide indemnification under ----------------- this Section 8.01Agreement, the Indemnitee will give such party Indemnifying Party reasonably prompt written notice thereof, but in any event not later than ten (the "Indemnified Party"10) shall give written ------------ ----------------- notice to the other party (the "Indemnifying Party") calendar days after receiving written ------------------ receipt of notice of any actionsuch Third Party Claim; provided, lawsuithowever, 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 (if known and quantifiable), and the basis thereof; provided that the -------- failure of the Indemnitee to so notify the Indemnifying Party shall not only relieve the Indemnifying Party of from its or his obligations hereunder except obligation to indemnify the Indemnitee pursuant to this Article VIII to the extent such failure shall have prejudiced the Indemnifying Party. In that regard, if any 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 to indemnity pursuant to this Section 8.01, the Indemnified Party shall ------------ promptly notify the Indemnifying Party is materially prejudiced by such failure (whether as a result of the same in writingforfeiture of substantive rights or defenses or otherwise). Upon receipt of notification of a Third Party Claim, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in the defense of such actionentitled, lawsuit, proceeding, investigation or other claim giving rise upon written notice to the Indemnified Party's claim for indemnification at its expenseIndemnitee, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defensethe investigation and defense thereof; provided, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) furnish the Indemnified Party with reasonable evidence that the Indemnifying Party is and will be able to satisfy any such liability; and provided further however, that the Indemnifying Party shall not have the right to -------- ------- assume control of such the defense unless and shall pay the fees and expenses of counsel retained by the Indemnified Party, if the claim which until the Indemnifying Party seeks agrees in writing to assume control (A) seeks non-monetary reliefindemnify the Indemnitee with respect to such Third Party Claim, (B) involves criminal subject to the applicable limitations set forth herein. Whether or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that not the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted elects to assume the investigation and control the defense and elects to do soof any Third Party Claim, the Indemnified Party Indemnitee shall have the right to employ separate counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the investigation and defense thereof; provided, but however, that the Indemnitee shall pay the fees and expenses disbursements of such separate counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (ai) the employment thereof of such separate counsel has been specifically authorized in writing by the Indemnifying Party, (ii) the Indemnifying Party in writinghas failed to assume the defense of such Third Party Claim within a reasonable time after receipt of notice thereof, or (biii) the Indemnified Party named parties to the proceeding in which such claim, demand, action or cause of action has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between asserted include both the Indemnifying Party and such Indemnitee and, in the Indemnified reasonable judgment of counsel to such Indemnitee, there exists one or more defenses that are in conflict with those available to the Indemnifying Party. If Notwithstanding the Indemnifying Party shall control the defense of any such claimforegoing, 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 consent of the Indemnified Indemnitee, the Indemnifying Party (which shall will not be unreasonably withheld) before entering 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. If a claim 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 ceasing defenses against the Indemnitee, the Indemnitee may continue to defend contest such claim, if pursuant 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 as a result (2) the aggregate Indemnifiable Losses 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 obligations 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, without prejudicebut 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 so respond within such thirty (30) 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 this Article VIII.
(c) 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 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 (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 effect 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 a party hereto seeks indemnification under ----------------- this Section 8.01, such party (the "Indemnified Party") shall give written ------------ ----------------- notice to the other party (the "Indemnifying Party") after receiving written ------------------ notice of any action, lawsuitsuit, claim, tax audit, proceeding, investigation demand, assessment, or other claim against it (if enforcement action is filed or initiated by a third party) or discovering the liability, obligation or facts giving rise to such claim for indemnification, describing the claim, the amount thereof (if known and quantifiable), and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party shall not relieve 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 action, lawsuit, proceeding, investigation or other claim shall be brought or asserted by any third party which, if adversely determined, would entitle the against an Indemnified Party with respect to indemnity pursuant a matter subject to this Section 8.01an indemnification claim by that Indemnified Party, the Indemnified Party shall ------------ promptly notify give written notice thereof to the Indemnifying Party or Parties as promptly as practicable, and in any event within 20 days after service of the same citation or summons, but the failure of an Indemnified Party to give notice shall not affect an Indemnifying Party’s obligation to fulfill its indemnification obligations except to the extent that this failure actually and materially prejudices the Indemnifying Party’s rights. After that notice and a reasonable period of time to allow for analysis of the claim, if the Indemnifying Party acknowledges in writingwriting to the Indemnified Party that the Indemnifying Party is obligated under the terms of its indemnity hereunder for all Losses of the Indemnified Party in connection with that action, specifying in detail the basis of such claim and the facts pertaining thereto and suit, claim, tax audit, proceeding, demand, assessment, or enforcement action, the Indemnifying Party shall be entitled to participate in the defense of such actionentitled, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, if it so elects and at its option (subject to the limitations set forth below) shall be entitled to appoint lead with counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant , to which take control of the defense and investigation of that action, suit, claim, tax audit, proceeding, demand, assessment, or enforcement action and to employ and engage attorneys to handle and defend the same, at the Indemnifying Party’s cost, risk, and expense, except that, if the Indemnifying Party agrees elects not to be fully responsible assume that defense or counsel for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) furnish the Indemnified Party with reasonable evidence that the Indemnifying Party is determines in good faith and will be able to satisfy any such liability; and provided further that the Indemnifying Party shall not have the right to -------- ------- assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party, if the claim which the Indemnifying Party seeks to assume control (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense and elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by advises the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnified Party has been advised by legal counsel writing that a reasonable likelihood exists of a conflict there are issues that raise conflicts of interest between the Indemnifying Party and the Indemnified Party, the Indemnified Party may retain counsel satisfactory to it, and the Indemnifying Party shall pay all reasonable fees and expenses of such counsel for the Indemnified Party promptly as statements therefor are received; provided, however, that (a) the Indemnifying Party shall be obligated pursuant to this Section 12.4 to pay for only one firm of counsel (unless the use of one counsel for that Indemnified Party would present that counsel with a conflict of interest) for all Indemnified Parties in any jurisdiction, and (b) the Indemnifying Party shall cooperate in the defense of any such matter and make its records relating to the defense available to others. If the Indemnifying Party assumes the control of that defense, the Indemnified Party shall control cooperate in all reasonable respects, at the defense of any such claimIndemnifying Party’s request and cost, risk, and expense, with the Indemnifying Party and its attorneys in the investigation, trial, and defense of the action, suit, claim, tax audit, proceeding, demand, assessment, or enforcement action and any appeal arising therefrom; provided that the Indemnified Party may, at its own cost, participate in the investigation, trial, and defense of that action, suit, claim, tax audit, proceeding, demand, assessment, or enforcement action and any appeal arising therefrom. The Indemnifying Party shall obtain keep the Indemnified Party apprised of the status of the action, suit, claim, tax audit, proceeding, demand, assessment, or enforcement action, furnish the Indemnified Party with all documents and information the Indemnified Party reasonably requests in connection therewith, and consult with the Indemnified Party before acting on major matters involved in that action, suit, claim, tax audit, proceeding, demand, assessment, or enforcement action, including settlement discussions. Unless the Indemnified Party receives a complete release from all matters involved in the dispute or the judgment or settlement is only for monetary damages that the Indemnifying Party pays in full, no settlement or consent to entry of a judgment of any action for which indemnification may be payable hereunder shall be made without the prior written consent of the Indemnified Party (which shall not to be unreasonably withheld) before entering into ). The Indemnified Party shall be entitled to defend, settle, or proceed in such other manner as it deems fit, in its sole discretion, in connection with any settlement of a claim or ceasing to defend such action, suit, claim, if pursuant proceeding, demand, assessment, or enforcement action with respect to or as a result of such settlement or cessation, injunction or other equitable relief will be imposed against which the Indemnifying Party has not acknowledged its obligations in writing in accordance with the foregoing; and no reasonable action taken by the Indemnified Party in connection therewith shall affect or if such settlement does limit the obligations of the Indemnifying Party pursuant to this Section 12.4. If the Indemnifying Party assumes the control of the defense as provided above but subsequently, in the course of defending the matter, comes to believe that the matter is not expressly unconditionally release properly an obligation of that Indemnifying Party, the Indemnifying Party may with reasonable promptness advise the Indemnified Party from all liabilities of that new information. In that case, (a) if the Indemnified Party then agrees with the Indemnifying Party, the Indemnifying Party and obligations the Indemnified Party shall make mutually satisfactory arrangements for the Indemnified Party to assume the defense of that matter and to repay the Indemnifying Party for any amounts reasonably expended by it pursuant to this Article 12 with respect to such claimthat matter, without prejudiceand (b) if the Indemnified Party does not then agree with the Indemnifying Party, the Indemnifying Party shall have the right to commence legal proceedings to determine whether the matter is subject to indemnification by the Indemnifying Party; provided that, in the case of the foregoing clause (b), the Indemnifying Party shall continue to be obligated to defend the Indemnified Party with respect to that matter and to otherwise make the payments required by this Article 12 until that dispute is finally adjudicated by a court of competent jurisdiction and all rights to appeal with respect thereto have expired.
Appears in 1 contract
Samples: Limited Liability Company Interest Purchase Agreement (Wilmington Trust Corp)
Defense of Claims. If a 32.4.1 The Indemnified Party shall have the right, but not the obligation, to contest, defend and litigate any claim, action, suit or proceeding by any third party hereto seeks indemnification under ----------------- this Section 8.01alleged or asserted against such Party in respect of, such party (the "Indemnified Party") shall give written ------------ ----------------- notice resulting from, related to the other party (the "Indemnifying Party") after receiving written ------------------ notice or arising out of any action, lawsuit, proceeding, investigation or other claim against matter for which it (if by a third party) or discovering the liability, obligation or facts giving rise is entitled to such claim for indemnification, describing the claim, the amount thereof (if known and quantifiable)be indemnified hereunder, and the basis thereof; provided that the -------- failure to so notify the Indemnifying Party reasonable costs and expenses thereof shall not relieve the Indemnifying Party of its or his obligations hereunder except to the extent such failure shall have prejudiced be indemnified by the Indemnifying Party. In that regard, if any action, lawsuit, proceeding, investigation or other claim shall be brought or asserted by any third party which, if adversely determined, would entitle If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party in respect of loss to indemnity pursuant to the full extent provided by this Section 8.01Article 32, the Indemnified Party shall ------------ promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in the defense of such actionentitled, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Party's claim for indemnification at its expenseoption, and at its option (subject to the limitations set forth below) shall be entitled to appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying -------- Party's right to assume control of such defense, it must first:
(i) enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible for all Losses relating to such claims and that it will provide full indemnification to the Indemnified Party for all Losses relating to such claim; and
(ii) 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 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 (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party's reputation or future business prospects, or (D) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense of such claim, action, suit or proceeding, liabilities, payments and elects obligations at its expense and through the counsel of its choice; provided it gives prompt notice of its intention to do soso to the Indemnified Party and reimburses the Indemnified Party for the reasonable cost and expenses incurred by the Indemnified Party prior to the assumption by the Indemnifying Party of such defense. The Indemnifying Party shall not be entitled to settle or compromise any claim, demand, action, suit or proceeding without the prior written consent of the Indemnified Party, unless the Indemnifying Party provides such security to the Indemnified Party as shall be reasonably required by the Indemnified Party to secure the loss to be indemnified hereunder to the extent so compromised or settled.
32.4.2 If the Indemnifying Party has exercised its rights under Clause 32.3, the Indemnified Party shall not be entitled to settle or compromise any claim, action, suit or proceeding without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed).
32.4.3 If the Indemnifying Party exercises its rights under Clause 32.3, the Indemnified Party shall nevertheless have the right to employ its own counsel, and such counsel separate from counsel employed by the Indemnifying Party in any such action and to may participate in the defense thereofsuch action, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless Party, when and as incurred, unless:
(a) the employment thereof of counsel by such party has been specifically authorized in writing by the Indemnifying Party in writing, or Party; or
(b) the Indemnified Party has been advised by legal counsel shall have reasonably concluded that a reasonable likelihood exists of there may be a conflict of interest between the Indemnifying Party and the Indemnified Party. If Party in the conduct of the defense of such action; or
(c) the Indemnifying Party shall control not, in fact, have employed independent counsel reasonably satisfactory to the Indemnified Party, to assume the defense of any such action and shall have been so notified by the Indemnified Party; or
(d) the Indemnified Party shall have reasonably concluded and specifically notified the Indemnifying Party either:
(i) that there may be specific defenses available to it which are different from or additional to those available to the Indemnifying Party; or
(ii) that such claim, action, suit or proceeding involves or could have a material adverse effect upon it beyond the Indemnifying scope of this Agreement: Provided that if Sub-clauses (b), (c) or (d) of this Clause 32.4.3 shall be applicable, the counsel for the Indemnified Party shall obtain have the prior written consent right to direct the defense of such claim, demand, action, suit or proceeding on behalf of the Indemnified Party (which shall not be unreasonably withheld) before entering into any settlement of a claim or ceasing to defend such claimParty, if pursuant to or as a result and the reasonable fees and disbursements of such settlement or cessation, injunction counsel shall constitute legal 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 obligations with respect to such claim, without prejudiceexpenses hereunder.
Appears in 1 contract
Samples: Development Agreement
