General Indemnification Procedures. a) If any civil, criminal, administrative or investigative action or proceeding (any of the above being a "Claim") is commenced against either Party entitled to indemnification under Sections 12.1 (a), 12.1 (c), 12.2 (a), 12.2 (c) or 12.3 (an "Indemnified Party") written notice thereof shall be given to the Party that is obligated to provide indemnification under such Sections (the "Indemnification Party") as promptly as practicable. After such notice, if the Indemnifying Party shall acknowledge in writing to such Indemnified Party that this Amended Agreement applied with respect to such Claim (such acknowledgment not to be deemed an acknowledgment of liability by such Indemnifying Party), then the Indemnifying Party shall be entitled, if it so elects, in a written notice delivered to the Indemnified Party not fewer than 10 days prior to the date on which the first response to such Claim is due, to take control of the defense and investigation of such Claim and to employ and engage attorneys of its sole choice to handle and defend the same, at the Indemnifying Party's sole cost and expense. The Indemnified Party shall cooperate in all reasonable respects with the Indemnifying Party and its attorneys in the investigation, trial and defense of such Claim and any appeal arising therefrom; provided, however, that the Indemnified Party may, at its own cost and expense, participate, through its attorneys or otherwise, in such investigation, trial and defense of such Claim and any appeal arising therefrom. No settlement of a Claim that involves a remedy other than the payment of money by the Indemnifying Party shall be entered into without the consent of the Indemnified Party, which consent will not be unreasonably withheld. b) After notice by the Indemnifying Party to the Indemnified Party of its election to assume full control of the defense of any such Claim, the Indemnifying Party shall not be liable to the Indemnified Party for any legal expenses incurred thereafter by such Indemnified Party in connection with the defense of that Claim. If the Indemnifying Party does not assume full control over the defense of a Claim subject to such defense as provided in this
Appears in 1 contract
Samples: Agreement for Systems Operations Services (Dean Witter Discover & Co)
General Indemnification Procedures. (a) If any civil, criminal, administrative or investigative action or proceeding (any of the above being a "Claim") is commenced against either Party entitled A party seeking indemnification pursuant to indemnification under Sections 12.1 (a), 12.1 (c), 12.2 (a), 12.2 (c) or 12.3 this Section 7.4 (an "Indemnified Party") shall give prompt written notice thereof shall be given to the Party that party from whom such indemnification is obligated to provide indemnification under such Sections sought (the "Indemnification Indemnifying Party") as promptly as practicable. After such noticeof the assertion of any claim, if the incurrence of any Damages, or the commencement of any action, suit or proceeding, of which it has knowledge and in respect of which indemnity may be sought hereunder, and will give the Indemnifying Party such information with respect thereto as the Indemnifying Party may reasonably request, but failure to give such required notice shall acknowledge in writing relieve the Indemnifying Party of any liability hereunder only to such the extent that the Indemnifying Party has suffered actual prejudice thereby. The Indemnifying Party shall have the right, exercisable by written notice to the Indemnified Party that this Amended Agreement applied with after receipt of notice from the Indemnified Party of the commencement of or assertion of any claim or action, suit or proceeding by a third party in respect to such Claim of which indemnity may be sought hereunder (such acknowledgment not to be deemed an acknowledgment of liability by such Indemnifying Partya "Third Party Claim"), then to assume the defense of such Third Party Claim which involves (and continues to involve) solely monetary damages; provided, that (A) the Indemnifying Party expressly agrees in such notice that, as between the Indemnifying Party and the Indemnified Party, solely the Indemnifying Party shall be entitledobligated to satisfy and discharge the Third Party Claim, if it so elects, in (B) such Third Party Claim does not include a written notice delivered request or demand for injunctive or other equitable relief by an Authority and (C) the Indemnifying Party makes reasonably adequate provision to assure the Indemnified Party not fewer than 10 days prior to the date on which the first response to such Claim is due, to take control of the defense and investigation ability of such Claim and to employ and engage attorneys of its sole choice to handle and defend the same, at the Indemnifying Party's sole cost and expense. The Indemnified Party shall cooperate in all reasonable respects with the Indemnifying Party and its attorneys in to satisfy the investigation, trial and defense full amount of such Claim and any appeal arising therefrom; provided, however, adverse monetary judgment that the Indemnified Party may, at its own cost and expense, participate, through its attorneys or otherwise, in such investigation, trial and defense of such Claim and any appeal arising therefromis reasonably likely to result. No settlement of a Claim that involves a remedy other than the payment of money by the The Indemnifying Party shall be entered into without deemed to have satisfied the consent condition set forth in clause (C) of the Indemnified Party, which consent will not be unreasonably withheld.
b) After notice by the Indemnifying Party to the Indemnified Party of its election to assume full control of the defense of any such Claim, the Indemnifying Party shall not be liable to the Indemnified Party for any legal expenses incurred thereafter by such Indemnified Party in connection with the defense of that Claimproceeding sentence if it is a regulated utility. If the Indemnifying Party does not assume full control over the defense of a Claim subject to such defense as provided in this63
Appears in 1 contract
General Indemnification Procedures. 57
(a) If any civil, criminal, administrative or investigative action or proceeding (any of the above being a "Claim") is commenced against either Party entitled A party seeking indemnification pursuant to indemnification under Sections 12.1 (a), 12.1 (c), 12.2 (a), 12.2 (c) or 12.3 this Section 7.4 (an "Indemnified Party") shall give prompt written notice thereof shall be given to the Party that party from whom such indemnification is obligated to provide indemnification under such Sections sought (the "Indemnification Indemnifying Party") as promptly as practicable. After such noticeof the assertion of any claim, if the incurrence of any Damages, or the commencement of any action, suit or proceeding, of which it has knowledge and in respect of which indemnity may be sought hereunder, and will give the Indemnifying Party such information with respect thereto as the Indemnifying Party may reasonably request, but failure to give such required notice shall acknowledge in writing relieve the Indemnifying Party of any liability hereunder only to such the extent that the Indemnifying Party has suffered actual prejudice thereby. The Indemnifying Party shall have the right, exercisable by written notice to the Indemnified Party that this Amended Agreement applied with after receipt of notice from the Indemnified Party of the commencement of or assertion of any claim or action, suit or proceeding by a third party in respect to such Claim of which indemnity may be sought hereunder (such acknowledgment not to be deemed an acknowledgment of liability by such Indemnifying Partya "Third Party Claim"), then to assume the defense of such Third Party Claim which involves (and continues to involve) solely monetary damages; provided, that (A) the Indemnifying Party expressly agrees in such notice that, as between the Indemnifying Party and the Indemnified Party, solely the Indemnifying Party shall be entitledobligated to satisfy and discharge the Third Party Claim, if it so elects, in (B) such Third Party Claim does not include a written notice delivered request or demand for injunctive or other equitable relief by an Authority and (C) the Indemnifying Party makes reasonably adequate provision to assure the Indemnified Party not fewer than 10 days prior to the date on which the first response to such Claim is due, to take control of the defense and investigation ability of such Claim and to employ and engage attorneys of its sole choice to handle and defend the same, at the Indemnifying Party's sole cost and expense. The Indemnified Party shall cooperate in all reasonable respects with the Indemnifying Party and its attorneys to satisfy the full amount of any adverse monetary judgment that is reasonably likely to result. The Indemnifying Party shall be deemed to have satisfied the condition set forth in clause (C) of the investigation, trial and defense of such Claim and any appeal arising therefrom; provided, however, that proceeding sentence if it is a regulated utility.
(b) Neither the Indemnified Party maynor the Indemnifying Party shall settle any Third Party Claim without the prior written consent of the other, which consent shall not be unreasonably withheld or delayed.
(c) The Indemnifying Party or the Indemnified Party, as the case may be, shall have the right to participate in (but not control), at its own cost and expense, participate, through its attorneys or otherwise, in such investigation, trial and defense of such Claim and any appeal arising therefrom. No settlement of a Claim that involves a remedy other than the payment of money by the Indemnifying Party shall be entered into without the consent of the Indemnified Party, which consent will not be unreasonably withheld.
b) After notice by the Indemnifying Party to the Indemnified Party of its election to assume full control of the defense of any such Claim, Third Party Claim which the Indemnifying Party shall not be liable to the Indemnified Party for any legal expenses incurred thereafter by such Indemnified Party in connection with the defense of that Claim. If the Indemnifying Party does not assume full control over the defense of a Claim subject to such defense other party is defending as provided in thisthis Agreement.
(d) Amounts paid in respect of indemnification obligations of the parties shall be treated as an adjustment to the Purchase Price.
(e) Subject to Section 7.4.2(f) and Section 7.4.2(i), neither Parent nor Buyer (and the other Persons for which they can claim indemnity hereunder) shall be entitled to indemnification for Damages incurred unless the aggregate amount of Damages incurred by Parent or Buyer (or the other Persons for which they can claim indemnification), together with all other claims for Damages under Section 7.4.2(e) of each of the Related Purchase Agreements, exceeds $6,123,000 in the aggregate (the "Threshold Amount"), in which case Seller shall then be liable for Damages in excess of the Threshold Amount. Subject to Section 7.4.2(f) and Section 7.4.2(i), the cumulative aggregate indemnity obligation of Citizens and its Affiliates under Section 7.4 of this Agreement and the Related Purchase Agreements shall not exceed $60,000,000 (the "Ceiling").
(f) Notwithstanding the foregoing, the parties acknowledge that Parent or Buyer (and the other Persons for which they can claim indemnity hereunder) shall be entitled to indemnification for Damages in respect of intentional and wilful breaches of covenants or agreements in this Agreement or any of the Retained Liabilities other than the Specified Liabilities irrespective of the Threshold Amount or the Ceiling (it being understood that the failure to cure a breach shall not, by itself, be an intentional and wilful breach). As used herein, the "Specified Liabilities" shall mean the Retained Liabilities arising from claims made after the Closing Date which (i) do not relate to matters within the scope of clauses (u), (v), (w) and (x) of Section 7.3.2; (ii) were not known to the Seller Parties on or prior to Closing; and (iii) relate exclusively to the Acquired Assets or the Business prior to the Closing Date. Notwithstanding anything to the contrary in this Section 7.4, Parent or Buyer (or the other Persons for which they can claim indemnification) shall be entitled to indemnification for Damages in respect of a breach of Section 3.2, 3.12 or 3.16 irrespective of the Threshold Amount or the Ceiling.
Appears in 1 contract
General Indemnification Procedures. (a) If any civil, criminal, administrative or investigative action or proceeding (any of the above being a "Claim") is commenced against either Party entitled A party seeking indemnification pursuant to indemnification under Sections 12.1 (a), 12.1 (c), 12.2 (a), 12.2 (c) or 12.3 this Section 7.4 (an "Indemnified Party") shall give prompt written notice thereof shall be given to the Party that party from whom such indemnification is obligated to provide indemnification under such Sections sought (the "Indemnification Indemnifying Party") as promptly as practicable. After such noticeof the assertion of any claim, if the incurrence of any Damages, or the commencement of any action, suit or proceeding, of which it has knowledge and in respect of which indemnity may be sought hereunder, and will give the Indemnifying Party such information with respect thereto as the Indemnifying Party may reasonably request, but failure to give such required notice shall acknowledge in writing relieve the Indemnifying Party of any liability hereunder only to such the extent that the Indemnifying Party has suffered actual prejudice thereby. The Indemnifying Party shall have the right, exercisable by written notice to the Indemnified Party that this Amended Agreement applied with after receipt of notice from the Indemnified Party of the commencement of or assertion of any claim or action, suit or proceeding by a third party in respect to such Claim of which indemnity may be sought hereunder (such acknowledgment not to be deemed an acknowledgment of liability by such Indemnifying Partya "Third Party Claim"), then to assume the defense of such Third Party Claim which involves (and continues to involve) solely monetary damages; provided, that (A) the Indemnifying Party expressly agrees in such notice that, as between the Indemnifying Party and the Indemnified Party, solely the Indemnifying Party shall be entitledobligated to satisfy and discharge the Third Party Claim, if it so elects, in (B) such Third Party Claim does not include a written notice delivered request or demand for injunctive or other equitable relief by an Authority and (C) the Indemnifying Party makes reasonably adequate provision to assure the Indemnified Party not fewer than 10 days prior to the date on which the first response to such Claim is due, to take control of the defense and investigation ability of such Claim and to employ and engage attorneys of its sole choice to handle and defend the same, at the Indemnifying Party's sole cost and expense. The Indemnified Party shall cooperate in all reasonable respects with the Indemnifying Party and its attorneys to satisfy the full amount of any adverse monetary judgment that is reasonably likely to result. The Indemnifying Party shall be deemed to have satisfied the condition set forth in clause (C) of the investigation, trial and defense of such Claim and any appeal arising therefrom; provided, however, that proceeding sentence if it is a regulated utility.
(b) Neither the Indemnified Party maynor the Indemnifying Party shall settle any Third Party Claim without the prior written consent of the other, which consent shall not be unreasonably withheld or delayed.
(c) The Indemnifying Party or the Indemnified Party, as the case may be, shall have the right to participate in (but not control), at its own cost and expense, participate, through its attorneys or otherwise, in such investigation, trial and defense of such Claim and any appeal arising therefrom. No settlement of a Claim that involves a remedy other than the payment of money by the Indemnifying Party shall be entered into without the consent of the Indemnified Party, which consent will not be unreasonably withheld.
b) After notice by the Indemnifying Party to the Indemnified Party of its election to assume full control of the defense of any such Claim, Third Party Claim which the Indemnifying Party shall not be liable to the Indemnified Party for any legal expenses incurred thereafter by such Indemnified Party in connection with the defense of that Claim. If the Indemnifying Party does not assume full control over the defense of a Claim subject to such defense other party is defending as provided in thisthis Agreement.
(d) Amounts paid in respect of indemnification obligations of the parties shall be treated as an adjustment to the Purchase Price. 61
Appears in 1 contract
General Indemnification Procedures. (a) If any civil, criminal, administrative or investigative action or proceeding (any of the above being a "Claim") is commenced against either Party entitled A party seeking indemnification pursuant to indemnification under Sections 12.1 (a), 12.1 (c), 12.2 (a), 12.2 (c) or 12.3 this Section 7.4 (an "Indemnified Party") shall give prompt written notice thereof shall be given to the Party that party from whom such indemnification is obligated to provide indemnification under such Sections sought (the "Indemnification Indemnifying Party") as promptly as practicable. After such noticeof the assertion of any claim, if the incurrence of any Damages, or the commencement of any action, suit or proceeding, of which it has knowledge and in respect of which indemnity may be sought hereunder, and will give the Indemnifying Party such information with respect thereto as the Indemnifying Party may reasonably request, but failure to give such required notice shall acknowledge in writing relieve the Indemnifying Party of any liability hereunder only to such the extent that the Indemnifying Party has suffered actual prejudice thereby. The Indemnifying Party shall have the right, exercisable by written notice to the Indemnified Party that this Amended Agreement applied with after receipt of notice from the Indemnified Party of the commencement of or assertion of any claim or action, suit or proceeding by a third party in respect to such Claim of which indemnity may be sought hereunder (such acknowledgment not to be deemed an acknowledgment of liability by such Indemnifying Partya "Third Party Claim"), then to assume the defense of such Third Party Claim which involves (and continues to involve) solely monetary damages; provided, that (A) the Indemnifying Party expressly agrees in such notice that, as between the Indemnifying Party and the Indemnified Party, solely the Indemnifying Party shall be entitledobligated to satisfy and discharge the Third Party Claim, if it so elects, in (B) such Third Party Claim does not include a written notice delivered request or demand for injunctive or other equitable relief by an Authority and (C) the Indemnifying Party makes reasonably adequate provision to assure the Indemnified Party not fewer than 10 days prior to the date on which the first response to such Claim is due, to take control of the defense and investigation ability of such Claim and to employ and engage attorneys of its sole choice to handle and defend the same, at the Indemnifying Party's sole cost and expense. The Indemnified Party shall cooperate in all reasonable respects with the Indemnifying Party and its attorneys to satisfy the full amount of any adverse monetary judgment that is reasonably likely to result. The Indemnifying Party shall be deemed to have satisfied the condition set forth in clause (C) of the investigation, trial and defense of such Claim and any appeal arising therefrom; provided, however, that proceeding sentence if it is a regulated utility.
(b) Neither the Indemnified Party may, at its own cost and expense, participate, through its attorneys or otherwise, in such investigation, trial and defense of such Claim and any appeal arising therefrom. No settlement of a Claim that involves a remedy other than the payment of money by nor the Indemnifying Party shall be entered into settle any Third Party Claim without the prior written consent of the Indemnified Partyother, which consent will shall not be unreasonably withheld.
b) After notice by the Indemnifying Party to the Indemnified Party of its election to assume full control of the defense of any such Claim, the Indemnifying Party shall not be liable to the Indemnified Party for any legal expenses incurred thereafter by such Indemnified Party in connection with the defense of that Claimwithheld or delayed. If the Indemnifying Party does not assume full control over the defense of a Claim subject to such defense as provided in this62
Appears in 1 contract
General Indemnification Procedures. a) If any civil, criminal, administrative or investigative action or proceeding (any of the above being a "Claim") is commenced against either Party entitled A party seeking indemnification pursuant to indemnification under Sections 12.1 (a), 12.1 (c), 12.2 (a), 12.2 (c) or 12.3 this Section 7.4 (an "Indemnified Party") shall give prompt written notice thereof shall be given to the Party that party from whom such indemnification is obligated to provide indemnification under such Sections sought (the "Indemnification Indemnifying Party") as promptly as practicable. After such noticeof the assertion of any claim, if the incurrence of any Damages, or the commencement of any action, suit or proceeding, of which it has knowledge and in respect of which indemnity may be sought hereunder, and will give the Indemnifying Party such information with respect thereto as the Indemnifying Party may reasonably request, but failure to give such required notice shall acknowledge in writing relieve the Indemnifying Party of any liability hereunder only to such the extent that the Indemnifying Party has suffered actual prejudice thereby. The Indemnifying Party shall have the right, exercisable by written notice to the Indemnified Party that this Amended Agreement applied with after receipt of notice from the Indemnified Party of the commencement of or assertion of any claim or action, suit or proceeding by a third party in respect to such Claim of which indemnity may be sought hereunder (such acknowledgment not to be deemed an acknowledgment of liability by such Indemnifying Partya "Third Party Claim"), then to assume the defense of such Third Party Claim which involves (and continues to involve) solely monetary damages; provided, that (A) the Indemnifying Party expressly agrees in such notice that, as between the Indemnifying Party and the Indemnified Party, solely the Indemnifying Party shall be entitledobligated to satisfy and discharge the Third Party Claim, if it so elects, in (B) such Third Party Claim does not include a written notice delivered request or demand for injunctive or other equitable relief by an Authority and (C) the Indemnifying Party makes reasonably adequate provision to assure the Indemnified Party not fewer than 10 days prior to the date on which the first response to such Claim is due, to take control of the defense and investigation ability of such Claim and to employ and engage attorneys of its sole choice to handle and defend the same, at the Indemnifying Party's sole cost and expense. The Indemnified Party shall cooperate in all reasonable respects with the Indemnifying Party and its attorneys in to satisfy the investigation, trial and defense full amount of such Claim and any appeal arising therefrom; provided, however, adverse monetary judgment that the Indemnified Party may, at its own cost and expense, participate, through its attorneys or otherwise, in such investigation, trial and defense of such Claim and any appeal arising therefromis reasonably likely to result. No settlement of a Claim that involves a remedy other than the payment of money by the The Indemnifying Party shall be entered into without deemed to have satisfied the consent condition set forth in clause (C) of the Indemnified Party, which consent will not be unreasonably withheldproceeding sentence if it is a regulated utility.
b) After notice by the Indemnifying Party to the Indemnified Party of its election to assume full control of the defense of any such Claim, the Indemnifying Party shall not be liable to the Indemnified Party for any legal expenses incurred thereafter by such Indemnified Party in connection with the defense of that Claim. If the Indemnifying Party does not assume full control over the defense of a Claim subject to such defense as provided in this
Appears in 1 contract
General Indemnification Procedures. (a) If any civil, criminal, administrative or investigative action or proceeding (any of the above being a "Claim") is commenced against either Party entitled A party seeking indemnification pursuant to indemnification under Sections 12.1 (a), 12.1 (c), 12.2 (a), 12.2 (c) or 12.3 this Article 8 (an "Indemnified Party") written shall give notice thereof shall be given to the Party that party from whom such indemnification is obligated to provide indemnification under such Sections sought (the "Indemnification Indemnifying Party") as promptly as practicable. After such noticeof the assertion of any claim, if or the commencement of any action, suit, or proceeding, in respect of which indemnity may be sought pursuant to this Article 8 (a "Claim") and will give the Indemnifying Party shall acknowledge in writing to such Indemnified Party that this Amended Agreement applied information with respect to such Claim (such acknowledgment not to be deemed an acknowledgment of liability by such Indemnifying Party), then thereto as the Indemnifying Party may reasonably request, but failure to give such notice shall be entitled, if it so elects, in a written notice delivered to the Indemnified Party not fewer than 10 days prior to the date on which the first response to such Claim is due, to take control of the defense and investigation of such Claim and to employ and engage attorneys of its sole choice to handle and defend the same, at the Indemnifying Party's sole cost and expense. The Indemnified Party shall cooperate in all reasonable respects with relieve the Indemnifying Party and its attorneys in of any Liability hereunder (except to the investigation, trial and defense of such Claim and any appeal arising therefrom; provided, however, extent that the Indemnified Party may, at its own cost and expense, participate, through its attorneys or otherwise, in such investigation, trial and defense of such Claim and any appeal arising therefrom. No settlement of a Claim that involves a remedy other than the payment of money by the Indemnifying Party has suffered actual prejudice thereby).
(b) For purposes of this Article 8, including the determination of Claims by Purchaser, any and all references to a "Material Adverse Effect" or "material" limitations or limitations as to "Knowledge" in Seller's representations and warranties, while being taken into account for purposes of determining whether a breach has occurred giving rise to a Claim by Purchaser for Adverse Consequences for which Purchaser is to be indemnified, shall be entered into without disregarded for purposes of calculating the consent amount of said Claim.
(c) In no event shall the provisions of this Article 8 in any way modify or otherwise limit the rights or remedies available to any of the Indemnified Partyparties with regard to a claim of fraud. The parties shall be entitled as a result of misrepresentation, breach, or default under this Agreement, to pursue any and all non-monetary relief to which consent will not any of them may otherwise be unreasonably withheldentitled at law, in equity or otherwise.
b) After notice by the Indemnifying Party to the Indemnified Party of its election to assume full control of the defense of any such Claim, the Indemnifying Party shall not be liable to the Indemnified Party for any legal expenses incurred thereafter by such Indemnified Party in connection with the defense of that Claim. If the Indemnifying Party does not assume full control over the defense of a Claim subject to such defense as provided in this
Appears in 1 contract
General Indemnification Procedures. (a) If any civil, criminal, administrative or investigative action or proceeding (any of the above being a "Claim") is commenced against either Party entitled A party seeking indemnification pursuant to indemnification under Sections 12.1 (a), 12.1 (c), 12.2 (a), 12.2 (c) or 12.3 this Section 7.4 (an "Indemnified Party") shall give prompt written notice thereof shall be given to the Party that party from whom such indemnification is obligated to provide indemnification under such Sections sought (the "Indemnification Indemnifying Party") as promptly as practicable. After such noticeof the assertion of any claim, if the incurrence of any Damages, or the commencement of any action, suit or proceeding, of which it has knowledge and in respect of which indemnity may be sought hereunder, and will give the Indemnifying Party such information with respect thereto as the Indemnifying Party may reasonably request, but failure to give such required notice shall acknowledge in writing relieve the Indemnifying Party of any liability hereunder only to such the extent that the Indemnifying Party has suffered actual prejudice thereby. The Indemnifying Party shall have the right, exercisable by written notice to the Indemnified Party that this Amended Agreement applied with after receipt of notice from the Indemnified Party of the commencement of or assertion of any claim or action, suit or proceeding by a third party in respect to such Claim of which indemnity may be sought hereunder (such acknowledgment not to be deemed an acknowledgment of liability by such Indemnifying Partya "Third Party Claim"), then to assume the defense of such Third Party Claim which involves (and continues to involve) solely monetary damages; provided, that (A) the Indemnifying Party expressly agrees in such notice that, as between the Indemnifying Party and the Indemnified Party, solely the Indemnifying Party shall be entitledobligated to satisfy and discharge the Third Party Claim, if it so elects, in (B) such Third Party Claim does not include a written notice delivered request or demand for injunctive or other equitable relief by an Authority and (C) the Indemnifying Party makes reasonably adequate provision to assure the Indemnified Party not fewer than 10 days prior to the date on which the first response to such Claim is due, to take control of the defense and investigation ability of such Claim and to employ and engage attorneys of its sole choice to handle and defend the same, at the Indemnifying Party's sole cost and expense. The Indemnified Party shall cooperate in all reasonable respects with the Indemnifying Party and its attorneys to satisfy the full amount of any adverse monetary judgment that is reasonably Illinois likely to result. The Indemnifying Party shall be deemed to have satisfied the condition set forth in clause (C) of the investigation, trial and defense of such Claim and any appeal arising therefrom; provided, however, that proceeding sentence if it is a regulated utility.
(b) Neither the Indemnified Party maynor the Indemnifying Party shall settle any Third Party Claim without the prior written consent of the other, which consent shall not be unreasonably withheld or delayed.
(c) The Indemnifying Party or the Indemnified Party, as the case may be, shall have the right to participate in (but not control), at its own cost and expense, participate, through its attorneys or otherwise, in such investigation, trial and defense of such Claim and any appeal arising therefrom. No settlement of a Claim that involves a remedy other than the payment of money by the Indemnifying Party shall be entered into without the consent of the Indemnified Party, which consent will not be unreasonably withheld.
b) After notice by the Indemnifying Party to the Indemnified Party of its election to assume full control of the defense of any such Claim, Third Party Claim which the Indemnifying Party shall not be liable to the Indemnified Party for any legal expenses incurred thereafter by such Indemnified Party in connection with the defense of that Claim. If the Indemnifying Party does not assume full control over the defense of a Claim subject to such defense other party is defending as provided in thisthis Agreement.
(d) Amounts paid in respect of indemnification obligations of the parties shall be treated as an adjustment to the Purchase Price.
(e) Subject to Section 7.4.2(f) and Section 7.4.2(i), neither Parent nor IAWC (and the other Persons for which they can claim indemnity hereunder) shall be entitled to indemnification for Damages incurred unless the aggregate amount of Damages incurred by Parent and IAWC (or the other Persons for which they can claim indemnification), together with all other claims for Damages under Section 7.4.2(e) of each of the Related Purchase Agreements, exceeds $6,123,000 in the aggregate (the "Threshold Amount"), in which case Seller shall then be liable for Damages in excess of the Threshold Amount. Subject to Section 7.4.2(f) and Section 7.4.2(i), the cumulative aggregate indemnity obligation of Citizens and its Affiliates under Section 7.4 of this Agreement and the Related Purchase Agreements shall not exceed $60,000,000 (the "Ceiling").
(f) Notwithstanding the foregoing, the parties acknowledge that Parent and IAWC (and the other Persons for which they can claim indemnity hereunder) shall be entitled to indemnification for Damages in respect of intentional and wilful breaches of covenants or agreements in this Agreement or any of the Retained Liabilities other than the Specified Liabilities irrespective of the Threshold Amount or the Ceiling (it being understood that the failure to cure a breach shall not, by itself, be an intentional and wilful breach). As used herein, the "Specified Liabilities" shall mean the Retained Liabilities arising from claims made after the Closing Date which (i) do not relate to matters within the scope of clauses (u), (v), (w) and (x) of Section 7.3.2; (ii) were not known to the Seller Parties on or prior to Closing; and (iii) relate exclusively to the Acquired Assets or the Business prior to the Closing Date. Notwithstanding anything to the contrary in this Section 7.4, Parent and IAWC (or the other Persons for which they can claim indemnification) shall be entitled to indemnification for Damages in respect of a breach of Section 3.2, 3.12 or 3.16 irrespective of the Threshold Amount or the Ceiling.
Appears in 1 contract
General Indemnification Procedures. (a) If any civil, criminal, administrative or investigative action or proceeding (any of the above being a "Claim") is commenced against either Party entitled A party seeking indemnification pursuant to indemnification under Sections 12.1 (a), 12.1 (c), 12.2 (a), 12.2 (c) or 12.3 this Section 7.4 (an "Indemnified Party") shall give prompt written notice thereof shall be given to the Party that party from whom such indemnification is obligated to provide indemnification under such Sections sought (the "Indemnification Indemnifying Party") as promptly as practicable. After such noticeof the assertion of any claim, if the incurrence of any Damages, or the commencement of any action, suit or proceeding, of which it has knowledge and in respect of which indemnity may be sought hereunder, and will give the Indemnifying Party such information with respect thereto as the Indemnifying Party may reasonably request, but failure to give such required notice shall acknowledge in writing relieve the Indemnifying Party of any liability hereunder only to such the extent that the Indemnifying Party has suffered actual prejudice thereby. The Indemnifying Party shall have the right, exercisable by written notice to the Indemnified Party that this Amended Agreement applied with after receipt of notice from the Indemnified Party of the commencement of or assertion of any claim or action, suit or proceeding by a third party in respect to such Claim of which indemnity may be sought hereunder (such acknowledgment not to be deemed an acknowledgment of liability by such Indemnifying Partya "Third Party Claim"), then to assume the defense of such Third Party Claim which involves (and continues to involve) solely monetary damages; provided, that (A) the Indemnifying Party expressly agrees in such notice that, as between the Indemnifying Party and the Indemnified Party, solely the Indemnifying Party shall be entitledobligated to satisfy and discharge the Third Party Claim, if it so elects, in (B) such Third Party Claim does not include a written notice delivered request or demand for injunctive or other equitable relief by an Authority and (C) the Indemnifying Party makes reasonably adequate provision to assure the Indemnified Party not fewer than 10 days prior to the date on which the first response to such Claim is due, to take control of the defense and investigation ability of such Claim and to employ and engage attorneys of its sole choice to handle and defend the same, at the Indemnifying Party's sole cost and expense. The Indemnified Party shall cooperate in all reasonable respects with the Indemnifying Party and its attorneys to satisfy the full amount of any adverse monetary judgment that is reasonably likely to result. The Indemnifying Party shall be deemed to have satisfied the condition set forth in clause (C) of the investigation, trial and defense of such Claim and any appeal arising therefrom; provided, however, that proceeding sentence if it is a regulated utility.
(b) Neither the Indemnified Party maynor the Indemnifying Party shall settle any Third Party Claim without the prior written consent of the other, which consent shall not be unreasonably withheld or delayed.
(c) The Indemnifying Party or the Indemnified Party, as the case may be, shall have the right to participate in (but not control), at its own cost and expense, participate, through its attorneys or otherwise, in such investigation, trial and defense of such Claim and any appeal arising therefrom. No settlement of a Claim that involves a remedy other than the payment of money by the Indemnifying Party shall be entered into without the consent of the Indemnified Party, which consent will not be unreasonably withheld.
b) After notice by the Indemnifying Party to the Indemnified Party of its election to assume full control of the defense of any such Claim, Third Party Claim which the Indemnifying Party shall not be liable to the Indemnified Party for any legal expenses incurred thereafter by such Indemnified Party in connection with the defense of that Claim. If the Indemnifying Party does not assume full control over the defense of a Claim subject to such defense other party is defending as provided in thisthis Agreement.
(d) Amounts paid in respect of indemnification obligations of the parties shall be treated as an adjustment to the Purchase Price.
(e) Subject to Section 7.4.2(f), neither Parent nor Buyer (and the other Persons for which they can claim indemnity hereunder) shall be entitled to indemnification for Damages incurred unless the aggregate amount of Damages incurred by Parent or Buyer (or the other Persons for which they can claim indemnification) exceeds $3,000,000 in the aggregate (the "Threshold Amount"), in which case Seller and PEI shall then be liable for Damages in excess of the Threshold Amount. Subject to Section 7.4.2(f), the cumulative aggregate indemnity obligation of PEI and Seller under this Section 7.4 shall not exceed $40,000,000 (the "Ceiling) and the cumulative aggregate indemnity obligation of PEI and Seller under Section 7.4.1(a)(D) shall not exceed $1,000,000.
(f) Notwithstanding the foregoing, the parties acknowledge that Parent or Buyer (and the other Persons for which they can claim indemnity hereunder) shall be entitled to indemnification for Damages in respect of intentional and wilful breaches of covenants or agreements in this Agreement or any of the Retained Liabilities other than the Specified Liabilities irrespective of the Threshold Amount or the Ceiling, and that Parent or Buyer (and the other Persons for which they can claim indemnity hereunder) shall be entitled to indemnification for Damages pursuant to Section 7.4.1(a)(D) irrespective of the Threshold Amount (it being understood that the failure to cure a breach shall not, by itself, be an intentional and wilful breach). As used herein, the "Specified Liabilities" shall mean the Retained Liabilities arising from claims made after the Closing Date which (I) do not relate to matters within the scope of clauses (u), (v), (w) and (x) of Section 7.3.2; (ii) were unknown, after due inquiry, on or prior to Closing to any officer, any accounting supervisor or any manager of a water system of Seller or PEI; (iii) relate exclusively to the Acquired Assets or the Business prior to the Closing Date; and (iv) are not within the scope of coverage or policy limits (without giving effect to any deductible or retention) of the insurance policies of Seller or PEI. Notwithstanding anything to the contrary in this Section 7.4, Parent or Buyer (or the other Persons for which they can claim indemnification) shall be entitled to indemnification for Damages in respect of a breach of Section 3.2, 3.12 or 3.16 irrespective of the Threshold Amount or the Ceiling.
Appears in 1 contract
Samples: Asset Purchase Agreement (American Water Works Co Inc)
General Indemnification Procedures. (a) If any civil, criminal, administrative or investigative action or proceeding (any of the above being a "Claim") is commenced against either Party entitled A party seeking indemnification pursuant to indemnification under Sections 12.1 (a), 12.1 (c), 12.2 (a), 12.2 (c) or 12.3 this Section 7.4 (an "Indemnified Party") shall give prompt written notice thereof shall be given to the Party that party from whom such indemnification is obligated to provide indemnification under such Sections sought (the "Indemnification Indemnifying Party") as promptly as practicable. After such noticeof the assertion of any claim, if the incurrence of any Damages, or the commencement of any action, suit or proceeding, of which it has knowledge and in respect of which indemnity may be sought hereunder, and will give the Indemnifying Party such information with respect thereto as the Indemnifying Party may reasonably request, but failure to give such required notice shall acknowledge in writing relieve the Indemnifying Party of any liability hereunder only to such the extent that the Indemnifying Party has suffered actual prejudice thereby. The Indemnifying Party shall have the right, exercisable by written notice to the Indemnified Party that this Amended Agreement applied with after receipt of notice from the Indemnified Party of the commencement of or assertion of any claim or action, suit or proceeding by a third party in respect to such Claim of which indemnity may be sought hereunder (such acknowledgment not to be deemed an acknowledgment of liability by such Indemnifying Partya "Third Party Claim"), then to assume the defense of such Third Party Claim which involves (and continues to involve) solely monetary damages; provided, that (A) the Indemnifying Party expressly agrees in such notice that, as between the Indemnifying Party and the Indemnified Party, solely the Indemnifying Party shall be entitledobligated to satisfy and discharge the Third Party Claim, if it so elects, in (B) such Third Party Claim does not include a written notice delivered request or demand for injunctive or other equitable relief by an Authority and (C) the Indemnifying Party makes reasonably adequate provision to assure the Indemnified Party not fewer than 10 days prior to the date on which the first response to such Claim is due, to take control of the defense and investigation ability of such Claim and to employ and engage attorneys of its sole choice to handle and defend the same, at the Indemnifying Party's sole cost and expense. The Indemnified Party shall cooperate in all reasonable respects with the Indemnifying Party and its attorneys to satisfy the full amount of any adverse monetary judgment that is reasonably likely to result. The Indemnifying Party shall be deemed to have satisfied the condition set forth in clause (C) of the investigation, trial and defense of such Claim and any appeal arising therefrom; provided, however, that proceeding sentence if it is a regulated utility.
(b) Neither the Indemnified Party maynor the Indemnifying Party shall settle any Third Party Claim without the prior written consent of the other, which consent shall not be unreasonably withheld or delayed.
(c) The Indemnifying Party or the Indemnified Party, as the case may be, shall have the right to participate in (but not control), at its own cost and expense, participate, through its attorneys or otherwise, in such investigation, trial and defense of such Claim and any appeal arising therefrom. No settlement of a Claim that involves a remedy other than the payment of money by the Indemnifying Party shall be entered into without the consent of the Indemnified Party, which consent will not be unreasonably withheld.
b) After notice by the Indemnifying Party to the Indemnified Party of its election to assume full control of the defense of any such Claim, Third Party Claim which the Indemnifying Party shall not be liable to the Indemnified Party for any legal expenses incurred thereafter by such Indemnified Party in connection with the defense of that Claim. If the Indemnifying Party does not assume full control over the defense of a Claim subject to such defense other party is defending as provided in thisthis Agreement.
(d) Amounts paid in respect of indemnification obligations of the parties shall be treated as an adjustment to the Purchase Price.
(e) Subject to Section 7.4.2(f) and Section 7.4.2(i), neither Parent nor Buyer (and the other Persons for which they can claim indemnity hereunder) shall be entitled to indemnification for Damages incurred unless the aggregate amount of Damages incurred by Parent or Buyer (or the other Persons for which they can claim indemnification), together with all other claims for Damages under Section 7.4.2(e) of each of the Related Purchase Agreements, exceeds $6,123,000 in the aggregate (the "Threshold Amount"), in which case Seller shall then be liable for Damages in excess of the Threshold Amount. Subject to Section 7.4.2(f) and Section 7.4.2(i), the cumulative aggregate indemnity obligation of Citizens and its Affiliates under Section
Appears in 1 contract
General Indemnification Procedures. a(i) If any civil, criminal, administrative or investigative action or proceeding (any of the above being a "Claim") is commenced against either A Party entitled seeking indemnification pursuant to indemnification under Sections 12.1 (a), 12.1 (c), 12.2 (a), 12.2 (c) or 12.3 this Section 6.7 (an "Indemnified Party") written shall give prompt notice thereof shall be given to the Party that from whom such indemnification is obligated to provide indemnification under such Sections sought (the "Indemnification Indemnifying Party") as promptly as practicable. After such noticeof the assertion of any claim, if the incurrence of any Damages, or the commencement of any action, suit or proceeding, of which it has Knowledge and in respect of which indemnity may be sought hereunder, and will give the Indemnifying Party such information with respect thereto as the Indemnifying Party may reasonably request, but failure to give such required notice shall acknowledge in writing relieve the Indemnifying Party of any liability hereunder only to such the extent that the Indemnifying Party has suffered material actual prejudice thereby. The Indemnifying Party shall have the right, exercisable by written notice to the Indemnified Party that this Amended Agreement applied with within five Business Days of receipt of notice from the Indemnified Party of the commencement of or assertion of any claim or action, suit or proceeding by a third Person in respect to such Claim of which indemnity may be sought hereunder (such acknowledgment not to be deemed an acknowledgment of liability by such Indemnifying Partya "Third Party Claim"), then to assume the defense of such Third Party Claim which involves (and continues to involve) solely monetary damages, provided that (A) the Indemnifying Party expressly agrees in such notice that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be entitled, if it so electssolely obligated to satisfy and discharge the Third Party Claim; (B) the defense of such Third Party Claim by the Indemnifying Party will not, in a written the reasonable judgment of the Indemnified Party, have any continuing material adverse effect on the Indemnified Party's business; (C) the Indemnifying Party makes reasonably adequate provision to ensure the Indemnified Party of the ability of the Indemnifying Party to satisfy the full amount of any adverse monetary judgment that may result; and (D) the Indemnifying Party shall keep the Indemnified Party reasonably informed of the progress of such Third Party Claim (the conditions set forth in clauses (A), (B), (C) and (D) are collectively referred to as the "Litigation Conditions").
(ii) Within ten Business Days after the Indemnifying Party has given notice delivered to the Indemnified Party not fewer than 10 days prior of its intended exercise of its right to defend a Third Party Claim, the Indemnified Party shall give notice to the date on which Indemnifying Party of any objection thereto based upon the first response Litigation Conditions. If the Indemnified Party so objects, the Indemnified Party shall continue to defend the Third Party Claim until such Claim time as such objection is duewithdrawn. If no such notice is given, or if any such objection is withdrawn, the Indemnifying Party shall be entitled to take control assume and conduct such defense, with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party, until such time as the Indemnified Party shall give notice that any of the Litigation Conditions, in its reasonable judgment, are no longer satisfied.
(iii) The Indemnifying Party or the Indemnified Party, as the case may be, shall have the right to participate in (but not control), at its own expense, the defense and investigation of such any Third Party Claim and which any other Party is defending as provided in this Agreement. Notwithstanding the foregoing, an Indemnified Party shall have the right to employ and engage attorneys of its sole choice to handle and defend the same, separate counsel at the Indemnifying Party's sole cost expense if the named parties to any such proceeding (including any impleaded parties) include both such Indemnified Party and expense. The the Indemnifying Party, and such Indemnified Party shall cooperate in all reasonable respects with have been advised by counsel that a conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party and its attorneys (in the investigationwhich case, trial and defense of if such Claim and any appeal arising therefrom; provided, however, that the Indemnified Party maynotifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, at its own cost and expense, participate, through its attorneys or otherwise, in such investigation, trial and defense of such Claim and any appeal arising therefrom. No settlement of a Claim that involves a remedy other than the payment of money by the Indemnifying Party shall not have the right to assume the defense thereof and the reasonable expenses of such counsel shall be entered into at the expense of the Indemnifying Party).
(iv) The Indemnifying Party, if it shall have assumed the defense of any Third Party Claim as provided in this Agreement, shall not consent to a settlement of, or the entry of any judgment arising from, any such Third Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, enter into any compromise or settlement which commits the Indemnified Party to take, or to forbear to take, any action. The Indemnified Party shall have the sole and exclusive right to settle any Third Party Claim, on such terms and conditions as it deems reasonably appropriate, to the extent such Third Party Claim involves equitable or other non-monetary relief, and shall have the right to settle any Third Party Claim involving monetary damages with the written consent of the Indemnifying Party, which consent will shall not be unreasonably withheldwithheld or delayed.
b(v) After notice by Whether or not the Indemnifying Party chooses to defend or prosecute any claim involving a third Person, all the Parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith.
(vi) Amounts paid in respect of indemnification obligations of the Parties shall be treated as an adjustment to the Indemnified Party of its election to assume full control of the defense of any such Claim, the Indemnifying Party shall not be liable to the Indemnified Party for any legal expenses incurred thereafter by such Indemnified Party in connection with the defense of that Claim. If the Indemnifying Party does not assume full control over the defense of a Claim subject to such defense as provided in thisPurchase Price.
Appears in 1 contract
Samples: Asset Purchase Agreement (Wabash National Corp /De)
