Indemnifiable Damage Threshold; Other Limitations Sample Clauses

Indemnifiable Damage Threshold; Other Limitations. (a) Materiality standards or qualifications and qualifications by reference to the defined term “Material Adverse Effect” in any representation, warranty, covenant, agreement or obligation (other than Section 2.4(a) and Section 2.5(b)) shall not be taken into account in determining whether a failure of such representation or warranty to be true or correct, or a breach of such covenant, agreement or obligation, exists or taken into account in determining the amount of any Indemnifiable Damages with respect to such failure or breach. (b) Except for Indemnifiable Damages relating to or arising out of (i) Fraud, (ii) any failure of the IP Representations to be true and correct and (iii) any failure of the Fundamental Representations to be true and correct, the aggregate liability of the Converting Holders for any claim pursuant to Section 6.2(a)(i) shall be limited to any remaining Holdback Fund after any claims made pursuant to Section 6.3(c) are satisfied. (c) Except for Indemnifiable Damages relating to or arising out of (i) Fraud or (ii) any failure of the Fundamental Representations to be true and correct, the aggregate liability of the Converting Holders for any claim for any failure of the IP Representations to be true and correct shall be limited to the aggregate amount of any remaining Holdback Fund after any claims made pursuant to Section 6.3(b) are satisfied plus an additional amount equal to 2.5% of the Total Merger Consideration if the Holdback Fund is exhausted or released. (d) Notwithstanding anything to the contrary contained herein, (i) no Indemnified Person may make a claim in respect of any claim for Indemnifiable Damages relating to or arising out of the matters listed in Section 6.2(a)(i) (other than claims relating to or arising out of (i) Fraud or (ii) any failure of the Fundamental Representations to be true and correct) unless and until a Claim Certificate (together with any other delivered Claim Certificates) describing Indemnifiable Damages in an aggregate amount greater than 1% of the Total Merger Consideration (the “Tipping Basket”) has been delivered, in which case Acquirer may make claims for indemnification, compensation and reimbursement and may receive shares of Acquirer Common Stock and cash from the Holdback Fund for the full amount of all such Indemnifiable Damages for such matters. The Tipping Basket shall not apply to any other Indemnifiable Damages. (e) In the case of any claims for Indemnifiable Damages relating to or ...
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Indemnifiable Damage Threshold; Other Limitations. (a) Notwithstanding anything contained herein to the contrary, except with regard to claims involving (i) fraud or intentional misrepresentation by Parent, the Company or the Company Shareholder or (ii) any failure to be true and correct of any of the representations and warranties in Section 2.1 (Organization, Standing, Power and Subsidiaries), Section 2.2 (Capital Structure), Section 2.2(c)(a) (Authority), Section 2.11 (Taxes) (the “Tax Representation”), Section 3.1 (Power and Capacity), Section 3.2 Enforceability; Non-Contravention Section 3.3 (Title to Share) and Section 3.5 (Solvency); (the preceding sections, collectively, the “Special Representations”), no Indemnified Person may make a claim in respect of any claim for indemnification that may be made pursuant to clause (i) or (ii) of the first sentence of Section 9.2 unless and until a Claim Certificate (as defined below) describing Indemnifiable Damages in an aggregate amount greater than $50,000 (the “Aggregate Threshold”) has been delivered, in which case the Indemnified Person may make claims for indemnification for all Indemnifiable Damages (including the amount of the Aggregate Threshold). (b) Except with regard to (i) claims involving fraud or intentional misrepresentation by Parent or the Company Shareholder and claims involving fraud or intentional misrepresentation by the Company and (ii) any failure of any of the Special Representations to be true and correct as aforesaid , the maximum aggregate amount the Indemnified Persons may recover from the Company Shareholder pursuant to clauses (i) and (ii) of the first sentence of Section 9.2 shall be an amount equal to 100% of the sum of the Consideration Amount plus the CPOC Payments (as defined in Section 9.10). (c) Indemnifiable Damages shall be calculated net of actual recoveries under existing insurance policies (net of any actual collection costs and reserves); provided, however, that Purchaser shall not have any obligation to pursue any claims for insurance. In no event shall any party be indemnified under different provisions of this Agreement more than once for the same dollar of Indemnifiable Damages. Notwithstanding any provision of this Agreement to the contrary, except in the case of (i) fraud or intentional misrepresentation by the Company Shareholder, Parent or the Purchaser, the indemnification obligations set forth in this Article 9 shall be the sole and exclusive remedies available to the parties hereto with respect to or in c...
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Indemnifiable Damage Threshold; Other Limitations. (a) Notwithstanding anything to the contrary contained herein, no Indemnified Person may make a claim against the Holdback Fund in respect of any claim for Indemnifiable Damages arising out of, resulting from or in connection with the matters listed in clauses (i), (ii) or (iii) of Section 9.2(a) (other than claims arising out of, resulting from or in connection with (i) Fraud, intentional misrepresentation or willful misconduct by or on behalf of the Company or by such Selling Stockholder, or (ii) any failure of any of the Special Representations to be true and correct as aforesaid) unless and until a Claim Certificate (together with any other delivered Claim Certificates) describing Indemnifiable Damages for claims other than those set forth in clauses (i) and (ii) in an aggregate amount greater than $300,000 (the “Basket”) has been delivered, in which case the Indemnified Person may make claims for indemnification, compensation and reimbursement and may receive cash from the Holdback Fund for all Indemnifiable Damages (including the amount of the Basket), subject to the limitations set forth in this Article IX. The Basket shall not apply to any other Indemnifiable Damages or claims therefor. (b) If the Stock Purchase is consummated, recovery from the Holdback Fund shall constitute the sole and exclusive remedy for the indemnity obligations of each Selling Securityholder under this Agreement for Indemnifiable Damages (and not specific performance or other equitable remedies) arising out of, resulting from or in connection with the matters listed in clauses (i), (ii) or (iii) of Section 9.2(a), except (i) in the case of Fraud, intentional misrepresentation or willful misconduct by or on behalf of the Company or such Selling Securityholder and (ii) any failure of any of the representations and warranties made by (A) the Company in Section 2.1(a)-(b) (Organization, Standing, Power and Subsidiaries), Section 2.2 (Capital Structure), or Section 2.3(a) and Section 2.3(b)(i) and (ii)(A) (Authority; Non-contravention) or (B) the Company in any certificate delivered to Purchaser pursuant to this Agreement that are within the scope of those covered by the foregoing Sections (collectively, the “Special Representations”) to be true and correct as aforesaid. (c) In the case of any claims for Indemnifiable Damages arising out of, resulting from or in connection with (1) the failure of any of the Special Representations to be true and correct as aforesaid, (2) the matt...
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Indemnifiable Damage Threshold; Other Limitations. Except for any willful or knowing breach or misrepresentation, as to which claims may be brought without limitation as to time or amount: (a) No claim or action shall be brought under this Article VIII for breach of a representation or warranty after the lapse of one (1) year after the Closing Date, except for claims or actions brought for breach of any environmental and tax representations or warranties or made in or pursuant to Sections 4.2, 6.12, 6.16, and 6.17 which claim or action shall be brought within the applicable statute of limitations. Regardless of the foregoing, however, or any other provision of this Agreement: (i) There shall be no time limitation on any claim or action brought for breach of any representation or warranty made in or pursuant to Sections 4.2, 6.12, 6.16, and 6.17, and Company and Shareholders hereby waive all applicable statutory limitation periods with respect thereto. Any claim or action brought for breach of any representation or warranty made in or pursuant to Sections 6.12 and 6.13 or the covenants made in Section 6.14 may be brought at any time until the date that is thirty (30) calendar days after the underlying obligation is barred by the applicable period of limitation under federal and state Laws relating thereto (as such period may be extended by waiver). (ii) Any claim or action made by a Party by delivering notice to the other Party requesting resolution of a Dispute relating to a breach of a representation or warranty under Article IX prior to the termination of the survival period for such claim or action shall be preserved despite the subsequent termination of such survival period.
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Indemnifiable Damage Threshold; Other Limitations. Notwithstanding anything contained herein to the contrary, no Indemnified Person may receive any shares or other property from the Escrow Fund in respect of any claim for indemnification that is made pursuant to Section 9.2, except with respect to breaches of the Company’s representations and warranties in Sections 3.2, 3.6 or 3.13 or claims under Section 9.2(b) and (c), unless and until Indemnifiable Damages in an aggregate amount greater than $250,000 (the “Escrow Threshold”) have been incurred, paid or properly accrued, in which case the Escrow Threshold shall not limit the amount of Indemnifiable Damages that any Indemnified Person is entitled to receive pursuant to this Article 9. In determining the amount of any Indemnifiable Damages in respect of the failure of any representation or warranty to be true and correct as of any particular date, any materiality standard contained in such representation or warranty shall be disregarded. Except as otherwise required by law, any payments made pursuant to this Article 9 shall be treated as an adjustment to the purchase price for all Tax purposes.
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Indemnifiable Damage Threshold; Other Limitations. Notwithstanding anything to the contrary contained herein, no Indemnified Person may recover from the Escrow Fund in respect of Indemnifiable Damages (and not specific performance or other equitable remedies) arising out of, resulting from or in connection with the matters listed in clauses (i) and (ii) of Section 9.2(a) (other than relating to Special Representations, the Special Indemnity or fraud, intentional misrepresentation or intentional or willful breach) unless and until a Claim Certificate (together with any other delivered Claim Certificates) describing Indemnifiable Damages in an aggregate amount greater than $300,000 (the “Threshold Amount”) has been delivered, in which case the Indemnified Person may recover for indemnification, compensation and reimbursement, and may receive cash from the Escrow Fund for all Indemnifiable Damages (including the Threshold Amount), subject to the other limitations in this Article IX.
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Related to Indemnifiable Damage Threshold; Other Limitations

  • Indemnifiable Losses 14.3.1 Where an Indemnified Party is entitled to Indemnifiable Losses from the Indemnifying Party pursuant to Article 14.1.1(b) or 14.1.2(b), the Indemnified Party shall promptly notify the Indemnifying Party of the Indemnifiable Losses actually incurred by the Indemnified Party. The Indemnifiable Losses shall be reimbursed by the Indemnifying Party within thirty (30) days of receipt of the notice seeking Indemnifiable Losses by the Indemnified Party. In case of nonpayment of such losses after a valid notice under this Article 14.3, such event shall constitute a payment default under Article 13.

  • Damage Limitation IN NO EVENT SHALL THE COMPANY BE LIABLE TO THE SUBSCRIBER FOR ANY LOST PROFITS OR SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL BE INTERPRETED AND HAVE EFFECT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RULE OR REGULATION.

  • Indemnification; Third Party Claims The Master Servicer agrees to indemnify the Depositor, the Sponsor and the Trustee, and their respective officers, directors, agents and affiliates, and hold each of them harmless against any and all claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liability, fees and expenses that the Depositor, the Sponsor or the Trustee may sustain as a result of (a) any material breach by the Master Servicer of any if its obligations hereunder, including particularly its obligations to provide any reports under Section 9.25(a), Section 9.25(b), Section 9.26 or any information, data or materials required to be included in any Exchange Act report, (b) any material misstatement or omission in any information, data or materials provided by the Master Servicer, or (c) the negligence, bad faith or willful misconduct of the Master Servicer in connection with its performance hereunder, provided, however, that in no event shall the Master Servicer be liable for any special, consequential, indirect or punitive damages pursuant to this Section 9.31, even if advised of the possibility of such damages. The Depositor, the Sponsor and the Trustee shall immediately notify the Master Servicer if a claim is made by a third party with respect to this Agreement or the Mortgage Loans entitling the Depositor, the Sponsor or the Trustee to indemnification hereunder, whereupon the Master Servicer shall assume the defense of any such claim and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Notwithstanding anything to the contrary contained herein, the Master Servicer shall not settle any claim involving any of the other parties hereto without such party’s prior written consent unless such settlement involves a complete and absolute release of such party from any and all liability in connection with such claim. This indemnification shall survive the termination of this Agreement or the termination of the Master Servicer as a party to this Agreement.

  • Jointly Indemnifiable Claims (a) Given that certain Jointly Indemnifiable Claims may arise, the Company acknowledges and agrees that the Company shall, and to the extent applicable shall cause any Enterprise to (i) be fully and primarily responsible for, and be the indemnitor of first resort with respect to, payment to or payment on behalf of the Indemnitee in respect of indemnification or advancement of Expenses in connection with any such Jointly Indemnifiable Claim, irrespective of any right of recovery the Indemnitee may have from the Third-Party Indemnitors, and (ii) be required to advance the full amount of Expenses incurred by the Indemnitee and shall be liable for the full amount of all Expenses, judgments, fines, penalties and amounts paid in settlement to the extent not prohibited by (and not merely to the extent affirmatively permitted by) applicable law and as required by the terms of this Agreement, without regard to any rights the Indemnitee may have against the Third-Party Indemnitors. Under no circumstance shall the Company or any Enterprise be entitled to, and the Company hereby irrevocably waives, relinquishes and releases, any claims against the Third-Party Indemnitors for subrogation, contribution or recovery of any kind and no right of advancement or recovery the Indemnitee may have from the Third-Party Indemnitors shall reduce or otherwise alter the rights of the Indemnitee or the obligations of the Company or any Enterprise. The Company further agrees that no advancement or payment by any Third-Party Indemnitor on behalf of Indemnitee with respect to any Proceeding for which Indemnitee has sought indemnification, exoneration or hold harmless rights from the Company shall affect the foregoing and the Third-Party Indemnitor(s) shall have a right to receive from the Company, contribution and/or be subrogated, to the extent of such advancement or payment to all of the rights of recovery of Indemnitee against the Company. The Company and the Indemnitee agree that each of the Third-Party Indemnitors shall be third-party beneficiaries with respect to this Agreement entitled to enforce this Section 14 as though each such Third-Party Indemnitor were a party to this Agreement. (b) For purposes of this Agreement “Third-Party Indemnitor” means any person or entity that has or may in the future provide to the Indemnitee any indemnification, exoneration, hold harmless or Expense advancement rights and/or insurance benefits other than (i) the Company, (ii) any Enterprise and (iii) any entity or entities through which the Company maintains liability insurance applicable to the Indemnitee.

  • Indemnification of Third Party Claims The obligations and liabilities of any party to indemnify any other under this Article 6 with respect to Claims relating to third parties shall be subject to the following terms and conditions:

  • Standard of Care; Limitation of Liability; Indemnification (a) ALPS shall be obligated to act in good faith and to exercise commercially reasonable care and diligence in the performance of its duties under this Agreement, including with regard to the processing of investments checks using mutually agreed upon procedures. The parties agree that any encoding or payment processing errors shall be governed by this standard of care and Section 4-209 of the Uniform Commercial Code is superseded by this Section 4 of this Agreement. (b) In the absence of willful misfeasance, bad faith, negligence or reckless disregard by ALPS in the performance of its duties, obligations or responsibilities set forth in this Agreement, ALPS and its affiliates, including their respective officers, directors, agents and employees, shall not be liable for, and the Fund agrees to indemnify, defend and hold harmless such persons from, all taxes, charges, expenses, disbursements, assessments, claims, losses, damages, penalties, actions, suits, judgments and liabilities (including, without limitation, attorneys’ fees and disbursements and liabilities arising under applicable federal and state laws) arising directly or indirectly from the following: (i) the inaccuracy of factual information furnished to ALPS by the Fund or the Fund’s investment adviser or custodian or any authorized third party on behalf of the Fund; (ii) any reasonable error of judgment or mistake of law or for any loss suffered by the Fund in connection with the matters to which this Agreement relates; (iii) ALPS’ reliance on any instruction, direction, notice, instrument or other information provided by the Fund or the Fund’s investment adviser or custodian or any authorized third party on behalf of the Fund that ALPS reasonably believes to be genuine; (iv) failure to satisfy requests to cancel or amend payment orders, if ALPS receives such requests without reasonable time to comply with such requests; (v) failure to detect any erroneous payment order, provided that ALPS complies with the payment order instructions as received and with the Security Procedure (as defined below); (vi) lost interest with respect to the refundable amount of an unauthorized payment order, unless ALPS is notified of the unauthorized payment order within 30 days of notification by ALPS of the acceptance of such payment order; or (vii) any other action or omission to act which ALPS properly takes in connection with the provision of services to the Fund pursuant to this Agreement. (c) ALPS shall indemnify and hold harmless the Fund, the Fund’s investment adviser and their respective officers, directors, agents and employees from and against any and all taxes, charges, expenses, disbursements, assessments, claims, losses, damages, penalties, actions, suits, judgments and liabilities (including, without limitation, attorneys’ fees and disbursements and liabilities arising under applicable federal and state laws) arising directly or indirectly from ALPS’ willful misfeasance, bad faith, negligence or reckless disregard in the performance of its duties, obligations or responsibilities set forth in this Agreement. (d) Notwithstanding anything in this Agreement to the contrary, neither party shall be liable under this Agreement to the other party hereto for any punitive, consequential, special or indirect losses or damages. Any indemnification payable by a party to this Agreement shall be net of insurance maintained by the indemnified party as of the time the claim giving rise to indemnity hereunder is alleged to have arisen to the extent it covers such claim. (e) In any case in which either party (the “Indemnifying Party”) may be asked to indemnify or hold the other party (the “Indemnified Party”) harmless, the Indemnified Party will notify the Indemnifying Party promptly after identifying any situation which it believes presents or appears likely to present a claim for indemnification against the Indemnifying Party although the failure to do so shall not prevent recovery by the Indemnified Party and shall keep the Indemnifying Party advised with respect to all developments concerning such situation. The Indemnifying Party shall have the option to defend the Indemnified Party against any claim which may be the subject of this indemnification, and, in the event that the Indemnifying Party so elects, such defense shall be conducted by counsel chosen by the Indemnifying Party and reasonably satisfactory to the Indemnified Party, and thereupon the Indemnifying Party shall take over complete defense of the claim and the Indemnified Party shall sustain no further legal or other expenses in respect of such claim. The Indemnified Party will not confess any claim or make any compromise in any case in which the Indemnifying Party will be asked to provide indemnification, except with the Indemnifying Party’s prior written consent.

  • Exclusions from Indemnification Notwithstanding anything in this Agreement to the contrary, the Company shall not be obligated to: (a) indemnify or advance funds to Indemnitee for Expenses or Losses with respect to proceedings initiated by Xxxxxxxxxx, including any proceedings against the Company or its directors, officers, employees or other indemnitees and not by way of defense, except: (i) proceedings referenced in Section 4 above (unless a court of competent jurisdiction determines that each of the material assertions made by Indemnitee in such proceeding was not made in good faith or was frivolous); or (ii) where the Company has joined in or the Board has consented to the initiation of such proceedings; (b) indemnify Indemnitee if a final decision by a court of competent jurisdiction determines that such indemnification is prohibited by applicable law; (c) indemnify Indemnitee for the disgorgement of profits arising from the purchase or sale by Indemnitee of securities of the Company in violation of Section 16(b) of the Exchange Act, or any similar successor statute; or (d) indemnify or advance funds to Indemnitee for Indemnitee’s reimbursement to the Company of any bonus or other incentive-based or equity-based compensation previously received by Indemnitee or payment of any profits realized by Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements under Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 in connection with an accounting restatement of the Company or the payment to the Company of profits arising from the purchase or sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act).

  • Third Party Claims Each Notice of Claim given by Acquiror, which involves a third party (a “Third Party Claim”), shall be resolved as follows: (a) If, within thirty (30) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons shall have the right, but not the obligation to (i) take control of the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder. (b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom. (c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayed. (d) The Acquiror Indemnified Persons and the Indemnifying Persons shall use commercially reasonable efforts to avoid production of confidential information (consistent with Law), and to cause all communications among employees, counsel and others representing any party to a Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges. (e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.

  • Indemnification for Third Party Claims ‌ (a) Seller shall defend, indemnify and hold harmless Buyer, its shareholders and Affiliates, and their respective directors, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance by any Project Party of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Seller, the Contractor, any Subcontractor, and its respective employees or agents. (b) Buyer shall defend, indemnify and hold harmless Seller and its managers, officers, employees and agents, from and against all third party Claims and Liabilities for injury, including death, and property damage caused by, arising out of, or in connection with the performance of the Transaction Documents to the extent any of such Claims or Liabilities were caused by the negligence, gross negligence or willful misconduct of Buyer, its employees or agents. (c) Either Party seeking indemnification under this Agreement (the “Indemnified Party”) shall give notice to the Party required to provide indemnification hereunder (the “Indemnifying Party”) promptly after the Indemnified Party has actual knowledge of any Claim as to which indemnity may be sought hereunder, and the Indemnified Party shall permit the Indemnifying Party (at the expense of the Indemnifying Party) to assume the defense of any Claim or litigation resulting therefrom; provided that: (i) counsel for the Indemnifying Party who shall conduct the defense of such Claim or litigation shall be reasonably satisfactory to the Indemnified Party; (ii) the Indemnified Party may participate in such defense at its own expense, except the Indemnifying Party shall reimburse the Indemnified Party for its participation in such defense to the extent that the Indemnifying Party requests the Indemnified Party to participate in its own defense; and (iii) the omission by the Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent that such omission results in a failure of actual notice to the Indemnifying Party and Indemnifying Party is damaged as a result of such failure to give notice. Notwithstanding the foregoing, the Indemnifying Party may not settle any Claim related to the indemnity being provided hereunder without the consent of the Indemnified Party, such consent not to be unreasonably withheld. (d) With regard to any Claim or Liability which is the result of the joint or concurrent fault or negligence of Seller and Buyer, the Parties agree to jointly defend any Claim with respect thereto that is based on such joint or concurrent fault or negligence of Buyer and Seller. Any Claim of contribution or indemnification between Buyer and Seller relating to such Claims shall be resolved on the basis of the percentage of fault or negligence and the Parties agree to reserve the determination of such percentage until after resolution of such Claim. Such pro rata share shall be based upon a final judicial determination of the Parties’ comparative fault or negligence or, in the absence of such determination, by mutual agreement. (e) Nothing in this Section 26.1 is intended to allow any Indemnified Party to be indemnified from and against any third party Claims and Liabilities caused by, arising out of, or in connection with the performance of this Agreement to the extent any of such Claims or Liabilities were caused by, arose out of, or were in any way incidental to or in connection with its own negligence or intentional misconduct.

  • Indemnification Determinations Indemnification of an Indemnified Person pursuant to Section 8.4 shall be made if (a) the court or body before whom the proceeding is brought determines, in a final decision on the merits, that such Indemnified Person was not liable by reason of Disabling Conduct or (b) in the absence of such a determination, a majority of a quorum of disinterested, non-party Trustees or independent legal counsel in a written opinion make a reasonable determination, based upon a review of the facts, that such Indemnified Person was not liable by reason of Disabling Conduct. In making such a determination, the Board of Trustees of the Trust shall act in conformity with then applicable law and administrative interpretations, and shall afford a Trustee requesting indemnification who is not an “interested person” of the Trust, as defined in Section 2(a)(19) of the 1940 Act, a rebuttable presumption that such Trustee did not engage in disabling conduct while acting in his capacity as a Trustee.

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