Indemnification and Defense Procedures. A Person which is entitled to be indemnified under Section 5.1, 7.2, 15.1 or 15.2 is herein referred to as an "Indemnified Person" and the party which is obligated to indemnify an Indemnified Person under Section 5.1, 7.2, 15.1 or 15.2 is herein referred to as the "Indemnifying Party" with respect to the matter for which it is obligated to indemnify such Indemnified Person. All claims for indemnification under Sections 5.1, 7.2, 15.1 and 15.2 shall be asserted and resolved as follows: (a) If a third party claim for which an Indemnified Person is entitled to indemnity under Sections 5.1, 7.2, 15.1 and/or 15.2 (an "Indemnified Claim") is made against an Indemnified Person, and if Buyer or Seller intends to seek indemnity with respect thereto by or from an Indemnifying Party pursuant to Sections 5.1, 7.2, 15.1 and/or 15.2, then the party electing to seek indemnity on behalf of such Indemnified Person shall promptly transmit to the Indemnifying Party a written notice ("Claim Notice") (i) notifying such Indemnifying Party of such Indemnified Claim and request indemnity on behalf of such Indemnified Person with respect to such Indemnified Claim under Sections 5.1, 7.2, 15.1 and/or 15.2, as the case may be, (ii) setting forth the full name, address for all notices and the authorized representatives of such Indemnified Person with respect to such Indemnified Claim, and (iii) describing in reasonable detail the nature of the Indemnified Claim, including a copy of all papers served with respect to such Indemnified Claim (if any) and the basis of such request for indemnification under Sections 5.1, 7.2, 15.1 and/or 15.2, as the case may be. Failure to provide such Claim Notice promptly shall not affect the right of the Indemnified Person to indemnification hereunder except to the extent the Indemnifying Party is prejudiced thereby; provided that, the Indemnifying Party shall not be obligated to defend, indemnify or otherwise hold harmless an Indemnified Person with respect to a third party claim until a Claim Notice meeting the foregoing requirements is furnished to the Indemnifying Party by the party seeking indemnity hereunder. Within 30 days after receipt of any Claim Notice (the "Election Period"), the Indemnifying Party shall notify the party who sent the Claim Notice (A) whether the Indemnifying Party disputes its potential liability to indemnify the Indemnified Person under Sections 5.1, 7.2, 15.1 and/or 15.2, as the case may be, with respect to such third party claim and (B) whether the Indemnifying Party desires to defend the Indemnified Person against such third party claim; provided that, if the Indemnifying Party fails to so notify the Indemnified Person during the Election Period, the Indemnifying Party shall be deemed to have elected to dispute such liability and not to defend against such third party claim. The aforesaid election or deemed election by the Indemnifying Party not to assume the defense of the Indemnified Person with respect to such Indemnified Claim, however, shall be subject to the right of the Indemnifying Party to subsequently assume the defense of the Indemnified Person with respect to such Indemnified Claim at any time prior to settlement or final determination thereof. (b) If the Indemnifying Party notifies the party who sent the Claim Notice within the Election Period that the Indemnifying Party (i) does not dispute its liability to indemnify the Indemnified Person under Sections 5.1, 7.2, 15.1 and/or 15.2, as the case may be (or reserves the right to dispute whether such claim is an Indemnified Claim under Sections 5.1, 7.2, 15.1 and/or 15.2) and (ii) elects to assume the defense of such Indemnified Person with respect to such third party claim, then the Indemnifying Party shall have the right to defend, at its sole cost and expense, such third party claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 15.3(b). If an Indemnifying Party elects pursuant to the foregoing to assume the defense of an Indemnified Person with respect to a third party claim which is subsequently determined not to be an Indemnified Claim, then, without limiting any action the Indemnifying Party may have on account of actual fraud, the Indemnifying Party shall not be entitled to recover from the other party or the Indemnified Person the costs and expenses incurred by the Indemnifying Party in providing such defense. The Indemnifying Party shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided that the Indemnifying Party shall not enter into any settlement agreement (or settle or compromise any such third party claim in a manner) which provides for or results in any payment by or liability of the Indemnified Person of or for any damages or other amount, any lien, charge or encumbrance on any property of the Indemnified Person, any finding of responsibility or liability on the part of the Indemnified Person or any sanction or restriction upon the conduct of any business by the Indemnified Person without the Indemnified Person's express written consent, which consent shall not be unreasonably withheld. The Indemnified Person is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Person is actually entitled to indemnification hereunder), to file, during the Election Period, any motion, answer or other pleadings which the Indemnified Person shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party and not reasonably expected to be prejudicial to the Indemnifying Party. If requested by the Indemnifying Party, the Indemnified Person agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any such third party claim which the Indemnifying Party elects to contest, including the making of any related counterclaim or cross-complaint against any Person (other than a Buyer Indemnified Person, if the Indemnified Person is a Buyer Indemnified Person, or a Seller Indemnified Person, if the Indemnified Person is a Seller Indemnified Person). The Indemnified Person may participate in, but not control, any defense or settlement of any third party claim controlled by the Indemnifying Party pursuant to this Section 15.3(b), and the Indemnified Person shall bear its own costs and expenses with respect to such participation. The prosecution of the defense of a third party claim with reasonable diligence shall include the taking of such action (including the posting of a bond, deposit or other security) as may be necessary to prevent any action to foreclose a lien against or attachment of the property of the Indemnified Person for payment of such third party claim. (c) If the Indemnifying Party (i) fails to notify the party who sent the Claim Notice within the Election Period that the Indemnifying Party elects to defend the Indemnified Person pursuant to Section 15.3(b) or (ii) elects to defend the Indemnified Person pursuant to Section 15.3(b) but fails to prosecute the defense of (or to settle) the third party claim with reasonable diligence, then the Indemnified Person shall have the right to defend, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Person is actually entitled to indemnification hereunder), the third party claim by all appropriate proceedings, which proceedings shall be promptly and vigorously prosecuted by the Indemnified Person to a final conclusion or settled. Unless and until such defense is assumed by the Indemnifying Party as permitted in Section 15.3(a), the Indemnified Person shall have full control of such defense and proceedings; provided, however, that the Indemnifying Party, without assuming the defense of such Indemnified Claim, may participate in, but not control, any defense or settlement controlled by the Indemnified Person pursuant to this Section 15.3(c), and the Indemnifying Party shall bear its own costs and expenses with respect to such participation. The Indemnified Person may not enter into any compromise or settlement of such third party claim, without the Indemnifying Party's express written consent, which shall not be unreasonably withheld. (d) If an Indemnified Person is entitled to indemnity under Sections 5.1, 7.2, 15.1 and/or 15.2 for a claim or other matter which does not involve a third party claim, and if Buyer or Seller intends to seek indemnity on behalf of an Indemnified Person with respect thereto by or from an Indemnifying Party pursuant to Sections 5.1, 7.2, 15.1 and/or 15.2, then the party electing to seek indemnity on behalf of an Indemnified Person shall promptly transmit to the Indemnifying Party a written notice describing in reasonable detail the nature of such claim or other matter, the Indemnified Person's best estimate of the amount of damages attributable to such claim or other matter and the basis for the Indemnified Person's entitlement to indemnification under Sections 5.1, 7.2, 15.1 and/or 15.2, as the case may be. If the Indemnifying Party does not notify the party who sent such notice within 30 days from its receipt of such notice that the Indemnifying Party does not dispute such claim for indemnity, the Indemnifying Party shall be deemed to have disputed such claim. (e) To the extent any claim, action, suit or proceeding includes one or more Indemnified Claims with respect to an Indemnified Person and one or more third party claims which are not Indemnified Claims with respect to such Indemnified Person, any such non-Indemnified Claim insofar as it is with respect to such Indemnified Person shall not be covered by the indemnity in Sections 5.1, 7.2, 15.1 and 15.2, the Indemnifying Party shall not be obligated to undertake, conduct and control the defense or settlement of such non-Indemnified Claim insofar as it is with respect to such Indemnified Person, and such Indemnified Person shall be responsible for its own defense and settlement of such non-Indemnified Claim. The seeking by a party of indemnity hereunder on behalf of any Indemnified Person with respect to any third party claim or other claim or matter shall not prevent such party from then or thereafter also seeking indemnity hereunder on behalf of any other Indemnified Person with respect to such third party claim or other claim or matter and shall not prevent the other party from seeking indemnity hereunder on behalf of any Indemnified Person with respect to the same third party claim or other claim or matter.
Appears in 1 contract
Samples: Stock Purchase Agreement (Tesoro Petroleum Corp /New/)
Indemnification and Defense Procedures. A Person which is entitled to be indemnified under Article 5, Section 5.114.1, 7.2Section 14.2, 15.1 or 15.2 Article 9 is herein referred to as an "“Indemnified Person" ” and the party Party which is obligated to indemnify an Indemnified Person under Article 5, Section 5.114.1, 7.2Section 14.2, 15.1 or 15.2 Article 9 is herein referred to as the "“Indemnifying Party" ” with respect to the matter for which it is obligated to indemnify such Indemnified Person. All claims for indemnification under Sections 5.1Article 5, 7.2Section 14.1, 15.1 Section 14.2, and 15.2 Article 9 shall be asserted and resolved as follows:
(a) If a third party Person claim for which an Indemnified Person is entitled to indemnity under Sections 5.1Article 5, 7.2Section 14.1, 15.1 and/or 15.2 Section 14.2, or Article 9 (an "“Indemnified Claim"”) is made against an Indemnified Person, and if Buyer Buyers or Seller intends to seek indemnity with respect thereto by or from an Indemnifying Party pursuant to Sections 5.1Article 5, 7.2Section 14.1, 15.1 and/or 15.2Section 14.2, or Article 9, then the party Party electing to seek indemnity on behalf of such Indemnified Person shall promptly transmit to the Indemnifying Party a written notice ("“Claim Notice"”) (i) notifying such Indemnifying Party of such Indemnified Claim and request indemnity on behalf of such Indemnified Person with respect to such Indemnified Claim under Sections 5.1Article 5, 7.2Section 14.1, 15.1 and/or 15.2Section 14.2, or Article 9, as the case may be, (ii) setting forth the full name, address for all notices and the authorized representatives of such Indemnified Person with respect to such Indemnified Claim, and (iii) describing in reasonable detail the nature of the Indemnified Claim, including a copy of all papers served with respect to such Indemnified Claim (if any) and the basis of such request for indemnification under Sections 5.1Article 5, 7.2Section 14.1, 15.1 and/or 15.2Section 14.2, or Article 9, as the case may be. Failure to provide such Claim Notice promptly shall not affect the right of the Indemnified Person to indemnification hereunder except to the extent the Indemnifying Party is prejudiced thereby; provided that, the Indemnifying Party shall not be obligated to defend, indemnify or otherwise hold harmless an Indemnified Person with respect to a third party Person claim until a Claim Notice meeting the foregoing requirements is furnished to the Indemnifying Party by the party Party seeking indemnity hereunder. Within 30 thirty (30) days after receipt of any Claim Notice (the "“Election Period"”), the Indemnifying Party shall notify the party who Party which sent the Claim Notice (A) whether the Indemnifying Party disputes its potential liability obligation to indemnify the Indemnified Person under Sections 5.1Article 5, 7.2Section 14.1, 15.1 and/or 15.2Section 14.2, or Article 9, as the case may be, with respect to such third party claim and (B) whether the Indemnifying Party desires to defend the Indemnified Person against such third party claim; provided that, if the Indemnifying Party fails to so notify the Indemnified Person during the Election Period, the Indemnifying Party shall be deemed to have elected to dispute such liability and not to defend against such third party Person claim. The aforesaid election or deemed election by the Indemnifying Party not to assume the defense of the Indemnified Person with respect to such Indemnified Claim, however, shall be subject to the right of the Indemnifying Party to subsequently assume the defense of the Indemnified Person with respect to such Indemnified Claim at any time prior to settlement or final determination thereof.
(b) If the Indemnifying Party notifies the party Party who sent the Claim Notice within the Election Period that the Indemnifying Party (i) does not dispute its liability to indemnify the Indemnified Person under Sections 5.1Article 5, 7.2Section 14.1, 15.1 and/or 15.2Section 14.2, or Article 9, as the case may be (or reserves the right to dispute whether such claim is an Indemnified Claim under Sections 5.1Article 5, 7.2Section 14.1, 15.1 and/or 15.2) and (ii) elects to assume the defense of such Indemnified Person with respect to such third party claimSection 14.2, or Article 9), then the Indemnifying Party shall have the right and obligation to defend, at its sole cost and expense, such third party Person claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 15.3(b14.3(b). If an Indemnifying Party elects pursuant to the foregoing to assume assumes the defense of an Indemnified Person with respect to a third party Person claim which is subsequently determined not to be an Indemnified Claim, then, without limiting any action the Indemnifying Party may have on account of actual fraud, the Indemnifying Party shall not be entitled to recover from the other party or the Indemnified Person the reasonable costs and expenses incurred by the Indemnifying Party in providing such defense, including, without limitation, reasonable attorneys’ fees. The Indemnifying Party shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided that the Indemnifying Party shall not enter into any settlement agreement (or settle or compromise any such third party Person claim in a manner) which provides for or results in any payment by or liability of the Indemnified Person of or for any damages or other amount, any lien, charge or encumbrance on any property of the Indemnified Person, any finding of responsibility or liability on the part of the Indemnified Person or any sanction or restriction upon the conduct of any business by the Indemnified Person without the Indemnified Person's ’s express written consent, which consent shall not be unreasonably withheld. The Indemnified Person is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if to the extent the Indemnified Person is actually entitled to indemnification hereunder), to file, during the Election Period, any motion, answer or other pleadings which the Indemnified Person shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party and not reasonably expected to be prejudicial to the Indemnifying Party. If requested by the Indemnifying Party, the Indemnified Person agrees, at the sole cost and expense of the Indemnifying Party, to reasonably cooperate with the Indemnifying Party and its counsel in contesting any such third party Person claim which the Indemnifying Party elects to contest, including the making of any related counterclaim or cross-complaint relating to such third Person claim against any Person (other than a Buyer Indemnified Person, if the Indemnified Person is a Buyer Indemnified Person, or a Seller Indemnified Person, if the Indemnified Person is us a Seller Indemnified Person). The Indemnified Person may participate in, but not control, any defense or settlement of any third party Person claim controlled by the Indemnifying Party pursuant to this Section 15.3(b14.3(b), and the Indemnified Person shall bear its own costs and expenses with respect to such participation. The prosecution of the defense of a third party Person claim with reasonable diligence shall include the taking of such action (including the posting of a bond, deposit or other security) as may be necessary to prevent any action to foreclose a lien against or attachment of the property of the Indemnified Person for payment of such third party Person claim.
(c) If the Indemnifying Party (i) fails to notify the party Party who sent the Claim Notice within the Election Period that the Indemnifying Party elects to defend the Indemnified Person pursuant to Section 15.3(b14.3(b) or (ii) elects to defend the Indemnified Person pursuant to Section 15.3(b14.3(b) but fails to prosecute the defense of (or to settle) the third party Person claim with reasonable diligence, then the Indemnified Person shall have the right to defend, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Person is actually entitled to indemnification hereunder), the third party Person claim by all appropriate proceedings, which proceedings shall be promptly and vigorously prosecuted by the Indemnified Person to a final conclusion or settled. Unless and until such defense is assumed by the Indemnifying Party as permitted in Section 15.3(a), the The Indemnified Person shall have full control of such defense and proceedings; provided, however, that the Indemnified Person may not enter into any compromise or settlement of such third Person claim, without the Indemnifying Party’s express written consent, without assuming the defense of such Indemnified Claim, which shall not be unreasonably withheld or delayed. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Person pursuant to this Section 15.3(c14.3(c), and the Indemnifying Party shall bear its own costs and expenses with respect to such participation. The Indemnified Person may not enter into any compromise or settlement of such third party claim, without the Indemnifying Party's express written consent, which shall not be unreasonably withheld.
(d) If an Indemnified Person is entitled to indemnity under Sections 5.1Article 5, 7.2Section 14.1, 15.1 and/or 15.2 Section 14.2, or Article 9 for a claim or other matter which does not involve a third party Person claim, and if Buyer Buyers or Seller intends intend to seek indemnity on behalf of an Indemnified Person with respect thereto by or from an Indemnifying Party pursuant to Sections 5.1Article 5, 7.2Section 14.1, 15.1 and/or 15.2Section 14.2, or Article 9, then the party Party electing to seek indemnity on behalf of an Indemnified Person shall promptly transmit to the Indemnifying Party a written notice describing in reasonable detail the nature of such claim or other matter, the Indemnified Person's ’s best estimate of the amount of damages Covered Liabilities attributable to such claim or other matter and the basis for the Indemnified Person's ’s entitlement to indemnification under Sections 5.1Article 5, 7.2Section 14.1, 15.1 and/or 15.2Section 14.2, or Article 9, as the case may be. If the Indemnifying Party does not notify the party Party who sent such notice within 30 thirty (30) days from its receipt of such notice that the Indemnifying Party does not dispute such claim for indemnity, the Indemnifying Party shall be conclusively deemed to have disputed such claim.
(e) To the extent any claim, action, suit or proceeding includes one or more Indemnified Claims with respect to an Indemnified Person and one or more third party Person claims which are not Indemnified Claims with respect to such Indemnified Person, any such non-Indemnified Claim insofar as it is with respect to such Indemnified Person shall not be covered by the indemnity in Sections 5.1Article 5, 7.2Section 14.1, 15.1 and 15.2Section 14.2, or Article 9, the Indemnifying Party shall not be obligated to undertake, conduct and control the defense or settlement of such non-Indemnified Claim insofar as it is with respect to such Indemnified Person, and such Indemnified Person shall be responsible for its own defense and settlement of such non-Indemnified Claim. The seeking by a party Party of indemnity hereunder on behalf of any Indemnified Person with respect to any third party Person claim or other claim or matter shall not prevent such party Party from then or thereafter also seeking indemnity hereunder on behalf of any other Indemnified Person with respect to such third party Person claim or other claim or matter and shall not prevent the other party Party from seeking indemnity hereunder on behalf of any Indemnified Person with respect to the same third party Person claim or other claim or matter.
(f) A claim for indemnification shall be deemed to be made for the purposes of this Agreement when the appropriate notice of such claim is received (or deemed received) by the alleged Indemnifying Party, notwithstanding that the alleged Indemnified Person did not file a lawsuit or institute any arbitration, mediation or other legal proceeding.
(g) In the event of a conflict between this Section 14.3 and Article 9, the terms of Article 9 shall control.
(h) The amount of any Covered Liabilities for which an Indemnified Person is entitled to indemnity under this Agreement shall be reduced by the amount of insurance, indemnification or guarantee proceeds or payments realized by the Indemnified Person or its Affiliates with respect to such Covered Liabilities (net of any reasonable collection costs incurred by such Persons, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates or any indemnification or guarantee agreements executed by an Affiliate of any Indemnified Person); provided, however, the Indemnified Person shall seek insurance recovery, indemnification or guarantee under any agreement giving rise to rights to the same (except that such Indemnified Person shall only be required to seek insurance recovery from policies of insurance obtained from unaffiliated third Persons for the benefit of the Indemnified Person) and take any reasonably necessary follow-up actions to receive such insurance recovery, indemnification or guarantee (but the election to file suit or otherwise pursue litigation or arbitration or other remedy shall be at the Indemnified Person's sole discretion).
Appears in 1 contract
Samples: Asset Purchase Agreement (Quicksilver Resources Inc)
Indemnification and Defense Procedures. A Person which is entitled to be indemnified under Section 5.1, 7.26.1, 15.1 12.3(d), 14.1 or 15.2 14.2 is herein referred to as an "“Indemnified Person" ” and the party which is obligated to indemnify an Indemnified Person under Section 5.1, 7.26.1, 15.1 14.1 or 15.2 14.2 is herein referred to as the "“Indemnifying Party" ” with respect to the matter for which it is obligated to indemnify such Indemnified Person. All claims for indemnification under Sections 5.1, 7.26.1, 15.1 14.1 and 15.2 14.2 shall be asserted and resolved as follows:
(a) If a third party claim for which an Indemnified Person is entitled to indemnity under Sections 5.1, 7.26.1, 15.1 14.1 and/or 15.2 14.2 (an "“Indemnified Claim"”) is made against an Indemnified Person, and if Buyer or Seller intends to seek indemnity with respect thereto by or from an Indemnifying Party pursuant to Sections 5.1, 7.26.1, 15.1 14.1 and/or 15.214.2, then the party electing to seek indemnity on behalf of such Indemnified Person shall promptly transmit to the Indemnifying Party a written notice ("“Claim Notice"”) (i) notifying such Indemnifying Party of such Indemnified Claim and request requesting indemnity on behalf of such Indemnified Person with respect to such Indemnified Claim under Sections 5.1, 7.26.1, 15.1 14.1 and/or 15.214.2, as the case may be, (ii) setting forth the full name, address for all notices and the authorized representatives of such Indemnified Person with respect to such Indemnified Claim, and (iii) describing in reasonable detail the nature of the Indemnified Claim, including a copy of all papers served with respect to such Indemnified Claim (if any) and the basis of such request for indemnification under Sections 5.1, 7.26.1, 15.1 14.1 and/or 15.214.2, as the case may be. Failure to provide such Claim Notice promptly shall not affect the right of the Indemnified Person to indemnification hereunder except to the extent the Indemnifying Party is prejudiced thereby; provided that, the Indemnifying Party shall not be obligated to defend, indemnify or otherwise hold harmless an Indemnified Person with respect to a third party claim until a Claim Notice meeting the foregoing requirements is furnished to the Indemnifying Party by the party seeking indemnity hereunder. Within 30 days after receipt of any Claim Notice (the "“Election Period"”), the Indemnifying Party shall notify the party who sent the Claim Notice (A) whether the Indemnifying Party disputes its potential liability to indemnify the Indemnified Person under Sections 5.1, 7.26.1, 15.1 14.1 and/or 15.214.2, as the case may be, with respect to such third party claim and (B) whether the Indemnifying Party desires to defend defend, at its sole cost and expense, the Indemnified Person against such third party claim; provided that, if the Indemnifying Party fails to so notify the Indemnified Person during the Election Period, the Indemnifying Party shall be deemed to have elected to dispute such liability and not to defend against such third party claim. The aforesaid election or deemed election by the Indemnifying Party not to assume the defense of the Indemnified Person with respect to such Indemnified Claim, however, shall be subject to the right of the Indemnifying Party to subsequently assume the defense of the Indemnified Person with respect to such Indemnified Claim at any time prior to settlement or final determination thereof.
(b) If the Indemnifying Party notifies the party who sent the Claim Notice within the Election Period that the Indemnifying Party (i) does not dispute its liability to indemnify the Indemnified Person under Sections 5.1, 7.26.1, 15.1 14.1 and/or 15.214.2, as the case may be (or reserves the right to dispute whether such claim is an Indemnified Claim under Sections 5.1, 7.26.1, 15.1 14.1 and/or 15.214.2) and (ii) elects to assume the defense of such Indemnified Person with respect to such third party claim, then the Indemnifying Party shall have the right to defend, at its sole cost and expense, with counsel of its choosing that is reasonably satisfactory to the Indemnified Person, such third party claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 15.3(b14.3(b). If an Indemnifying Party elects pursuant to the foregoing to assume the defense of an Indemnified Person with respect to a third party claim which is subsequently determined not to be an Indemnified Claim, then, without limiting any action the Indemnifying Party may have on account of actual fraud, the Indemnifying Party shall not be entitled to recover from the other party or the Indemnified Person the costs and expenses incurred by the Indemnifying Party in providing such defense. The Indemnifying Party shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided that the Indemnifying Party shall not enter into any settlement agreement (or settle or compromise any such third party claim in a manner) which provides for or results in any payment by or liability of the Indemnified Person of or for any damages or other amount, any lien, charge or encumbrance on any property of the Indemnified Person, any finding of responsibility or liability on the part of the Indemnified Person or any sanction or restriction upon the conduct of any business by the Indemnified Person without the Indemnified Person's ’s express written consent, which consent shall not be unreasonably withheld, and any such settlement agreement shall contain an unconditional provision whereby each plaintiff or claimant in such third party claim releases the Indemnified Person from all liability with respect thereto. The Indemnified Person is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Person is actually entitled to indemnification hereunder), to file, during the Election Period, any motion, answer or other pleadings which the Indemnified Person shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party and not reasonably expected to be prejudicial to the Indemnifying Party. If requested by the Indemnifying Party, the Indemnified Person agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any such third party claim which the Indemnifying Party elects to contest, including the making of any related counterclaim or cross-complaint against any Person (other than a Buyer Indemnified Person, if the Indemnified Person is a Buyer Indemnified Person, or a Seller Indemnified Person, if the Indemnified Person is a Seller Indemnified Person). The Indemnified Person may participate in, but not control, any defense or settlement of any third party claim controlled by the Indemnifying Party pursuant to this Section 15.3(b14.3(b), and the Indemnified Person shall bear its own costs and expenses with respect to such participation; provided, however, that notwithstanding the foregoing, the Indemnifying Party shall pay the reasonable attorneys’ fees of the Indemnified Person if the Indemnified Person’s counsel shall have advised the Indemnified Person that there is a conflict of interest that could make it inappropriate under applicable standards of professional conduct to have common counsel for the Indemnifying Party and the Indemnified Person (provided that the Indemnifying Party shall not be responsible for paying for more than one separate firm of attorneys and one local counsel to represent all of the Indemnified Persons subject to such third party claim). The prosecution of the defense of a third party claim with reasonable diligence shall include the taking of such action (including the posting of a bond, deposit or other security) as may be necessary to prevent any action to foreclose a lien against or attachment of the property of the Indemnified Person for payment of such third party claim.
(c) If the Indemnifying Party (i) fails to notify the party who sent the Claim Notice within the Election Period that the Indemnifying Party elects to defend the Indemnified Person pursuant to Section 15.3(b) or 14.3(b), (ii) elects to defend the Indemnified Person pursuant to Section 15.3(b14.3(b) but fails to prosecute the defense of (or to settle) the third party claim with reasonable diligence, or (iii) the third party claim seeks an order, injunction, or other equitable relief against the Indemnified Person which, if successful, could materially adversely affect the business, condition (financial or other), capitalization, assets, liabilities, results of operations or prospects of the Indemnified Person, then the Indemnified Person shall have the right to defend, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Person is actually entitled to indemnification hereunder)Party, the third party claim by all appropriate proceedings, which proceedings shall be promptly and vigorously prosecuted by the Indemnified Person to a final conclusion or settled. Unless and until such defense is assumed by the Indemnifying Party as permitted in Section 15.3(a), the The Indemnified Person shall have full control of such defense and proceedings; provided, however, that the Indemnified Person may not enter into any compromise or settlement of such third party claim, without the Indemnifying Party’s express written consent, without assuming the defense of such Indemnified Claim, which shall not be unreasonably withheld. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Person pursuant to this Section 15.3(c14.3(c), and the Indemnifying Party shall bear its own costs and expenses with respect to such participation. The Indemnified Person may .
(d) If the Indemnifying Party elects not enter into any compromise or settlement to assume the defense of such a third party claim, without or elects to assume the Indemnifying Party's express written consentdefense of a third party claim, which but reserves the right to dispute whether such claim is an Indemnified Claim under Sections 5.1, 6.1, 14.1 and/or 14.2, as the case may be, the determination of whether the Indemnified Person is entitled to indemnification hereunder shall not be unreasonably withheldresolved pursuant to arbitration as provided in Section 16.10.
(de) If an Indemnified Person is entitled to indemnity under Sections 5.1, 7.26.1, 15.1 14.1 and/or 15.2 14.2 for a claim or other matter which does not involve a third party claim, and if Buyer or Seller intends to seek indemnity on behalf of an Indemnified Person with respect thereto by or from an Indemnifying Party pursuant to Sections 5.1, 7.26.1, 15.1 14.1 and/or 15.214.2, then the party electing to seek indemnity on behalf of an Indemnified Person shall promptly transmit to the Indemnifying Party a written notice describing in reasonable detail the nature of such claim or other matter, the Indemnified Person's ’s best estimate of the amount of damages Covered Liabilities attributable to such claim or other matter (which shall not constitute an admission or be binding in any respect) and the basis for the Indemnified Person's ’s entitlement to indemnification under Sections 5.1, 7.26.1, 15.1 14.1 and/or 15.214.2, as the case may be. If the Indemnifying Party does not notify the party who sent such notice within 30 days from its receipt of such notice that the Indemnifying Party does not dispute such claim for indemnity, the Indemnifying Party shall be deemed to have disputed such claim. If the Indemnifying Party has disputed such claim, such dispute shall be resolved pursuant to arbitration as provided in Section 16.10.
(ef) To the extent any claim, action, suit or proceeding includes one or more Indemnified Claims with respect to an Indemnified Person and one or more third party claims which are not Indemnified Claims with respect to such Indemnified Person, any such non-Indemnified Claim insofar as it is with respect to such Indemnified Person shall not be covered by the indemnity in Sections 5.1, 7.26.1, 15.1 14.1 and 15.214.2, the Indemnifying Party shall not be obligated to undertake, conduct and control the defense or settlement of such non-Indemnified Claim insofar as it is with respect to such Indemnified Person, and such Indemnified Person shall be responsible for its own defense and settlement of such non-Indemnified Claim. The seeking by a party of indemnity hereunder on behalf of any Indemnified Person with respect to any third party claim or other claim or matter shall not prevent such party from then or thereafter also seeking indemnity hereunder on behalf of any other Indemnified Person with respect to such third party claim or other claim or matter and shall not prevent the other party from seeking indemnity hereunder on behalf of any Indemnified Person with respect to the same third party claim or other claim or matter.
Appears in 1 contract
Indemnification and Defense Procedures. A Person which is entitled to be indemnified under Section 5.1, 7.26.5(b), 15.1 13.1 or 15.2 13.2 is herein referred to as an "“Indemnified Person" ” and the party Party which is obligated to indemnify an Indemnified Person under Section 5.1, 7.26.5(b), 15.1 13.1 or 15.2 13.2 is herein referred to as the "“Indemnifying Party" ” with respect to the matter for which it is obligated to indemnify such Indemnified Person. All claims for indemnification under Sections 5.1, 7.26.5(b), 15.1 13.1 and 15.2 13.2 shall be asserted and resolved as follows:
(a) If a third third-party claim for which an Indemnified Person is entitled to indemnity under Sections 5.1, 7.26.5(b), 15.1 and/or 15.2 13.1 or 13.2 (an "“Indemnified Claim"”) is made against an Indemnified Person, and if Buyer or Seller intends to seek indemnity with respect thereto by or from an Indemnifying Party pursuant to Sections 5.1, 7.26.5(b), 15.1 and/or 15.213.1 or 13.2, as the case may be, then the party Party electing to seek indemnity on behalf of such Indemnified Person shall promptly transmit to the Indemnifying Party a written notice ("“Claim Notice"”) (i) notifying such Indemnifying Party of such Indemnified Claim and request requesting indemnity on behalf of such Indemnified Person with respect to such Indemnified Claim under Sections 5.1, 7.26.5(b), 15.1 and/or 15.213.1 or 13.2, as the case may be, (ii) setting forth the full name, address for all notices and the authorized representatives of such Indemnified Person with respect to such Indemnified Claim, and (iii) describing in reasonable detail the nature of the Indemnified Claim, including a copy of all papers served with respect to such Indemnified Claim (if any) and the basis of such request for indemnification under Sections 5.1, 7.26.5(b), 15.1 and/or 15.213.1 or 13.2, as the case may be. Failure to provide such Claim Notice promptly shall not affect the right of the Indemnified Person to indemnification hereunder except to the extent the Indemnifying Party is prejudiced thereby; provided that, the Indemnifying Party shall not be obligated to defend, indemnify or otherwise hold harmless an Indemnified Person with respect to a third third-party claim until a Claim Notice meeting the foregoing requirements is furnished to the Indemnifying Party by the party Party seeking indemnity hereunder. Within 30 days after receipt of any Claim Notice (the "“Election Period")”) from a Party, the Indemnifying Party shall notify the party Party who sent the Claim Notice (A) whether the Indemnifying Party disputes its potential liability to indemnify the Indemnified Person under Sections 5.1, 7.26.5(b), 15.1 and/or 15.213.1 or 13.2, as the case may be, with respect to such third third-party claim and (B) whether the Indemnifying Party desires to defend the Indemnified Person against such third third-party claim; provided that, if the Indemnifying Party fails to so notify the Indemnified Person Party who sent the Claim Notice during the Election Period, the Indemnifying Party shall be deemed to have elected to dispute such liability and not to defend against such third third-party claim. The aforesaid election or deemed election by the Indemnifying Party not to assume the defense of the Indemnified Person with respect to such Indemnified Claim, however, shall be subject to the right of the Indemnifying Party to subsequently assume the defense of the Indemnified Person with respect to such Indemnified Claim at any time prior to settlement or final determination thereof.
(b) If the Indemnifying Party notifies the party Party who sent the Claim Notice within the Election Period that the Indemnifying Party (i) does not dispute its liability to indemnify the Indemnified Person under Sections 5.1, 7.26.5(b), 15.1 and/or 15.213.1 or 13.2, as the case may be (or reserves the right to dispute whether such claim is an Indemnified Claim under Sections 5.1be, 7.2, 15.1 and/or 15.2) and (ii) elects to assume the defense of such Indemnified Person with respect to such third third-party claim, then the Indemnifying Party shall have the right to defend, at its sole cost and expense, such third third-party claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 15.3(b13.3(b). If an Indemnifying Party elects pursuant to the foregoing to assume the defense of an Indemnified Person with respect to a third party claim which is subsequently determined not to be an Indemnified Claim, then, without limiting any action the Indemnifying Party may have on account of actual fraud, the Indemnifying Party shall not be entitled to recover from the other party or the Indemnified Person the costs and expenses incurred by the Indemnifying Party in providing such defense. The Indemnifying Party shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided that that, the Indemnifying Party shall not enter into any settlement agreement (or settle or compromise any such third third-party claim in a manner) which provides for or results in any payment by or liability of the Indemnified Person of or for any damages or other amount, any lien, charge or encumbrance on any property of the Indemnified Person, any finding of responsibility or liability on the part of the Indemnified Person or any sanction or restriction upon the conduct of any business by the Indemnified Person without the Indemnified Person's ’s express written consent, which consent shall not be unreasonably withheld. The Indemnified Person is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Person is actually entitled to indemnification hereunder), to file, during the Election Period, any motion, answer or other pleadings which the Indemnified Person shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party and not reasonably expected to be prejudicial to the Indemnifying Party. If requested by the Indemnifying Party, the Indemnified Person agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any such third third-party claim which the Indemnifying Party elects to contest, including the making of any related counterclaim or cross-complaint against any Person (other than a Buyer Indemnified Person, if the Indemnified Person is a Buyer Indemnified Person, or a Seller Indemnified Person, if the Indemnified Person is a Seller Indemnified Person). The Indemnified Person may participate in, but not control, any defense or settlement of any third third-party claim controlled by the Indemnifying Party pursuant to this Section 15.3(b13.3(b), and the Indemnified Person shall bear its own costs and expenses with respect to such participation. The prosecution of the defense of a third third-party claim with reasonable diligence shall include the taking of such action (including the posting of a bond, deposit or other security) as may be necessary to prevent any action to foreclose a lien against or attachment of the property of the Indemnified Person for payment of such third third-party claim.
(c) If the Indemnifying Party (i) fails to notify the party Party who sent the Claim Notice within the Election Period that the Indemnifying Party elects to defend the Indemnified Person pursuant to Section 15.3(b13.3(b) or (ii) elects to defend the Indemnified Person pursuant to Section 15.3(b13.3(b) but fails to prosecute the defense of (or to settle) the third third-party claim with reasonable diligence, then the Indemnified Person shall have the right to defend, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Person is actually entitled to indemnification hereunder), the third third-party claim by all appropriate proceedings, which proceedings shall be promptly and vigorously prosecuted by the Indemnified Person to a final conclusion or settled. Unless and until such defense is assumed by the Indemnifying Party as permitted in Section 15.3(a), the The Indemnified Person shall have full control of such defense and proceedings; provided, however, that the Indemnified Person may not enter into any compromise or settlement of such third-party claim, without the Indemnifying Party’s express written consent, without assuming the defense of such Indemnified Claim, which shall not be unreasonably withheld or delayed. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Person pursuant to this Section 15.3(c13.3(c), and the Indemnifying Party shall bear its own costs and expenses with respect to such participation. The Indemnified Person may not enter into any compromise or settlement of such third party claim, without the Indemnifying Party's express written consent, which shall not be unreasonably withheld.
(d) If an Indemnified Person is entitled to indemnity under Sections 5.1, 7.26.5(b), 15.1 and/or 15.2 13.1 or 13.2 for a claim or other matter which does not involve a third third-party claim, and if Buyer or Seller intends to seek indemnity for itself or on behalf of an Indemnified Person with respect thereto by or from an Indemnifying Party pursuant to Sections 5.1, 7.26.5(b), 15.1 and/or 15.213.1 or 13.2, then the party Party electing to seek indemnity on behalf of itself or an Indemnified Person shall promptly transmit to the Indemnifying Party a written notice describing in reasonable detail the nature of such claim or other matter, the Indemnified Person's best ’s reasonable estimate of the amount of damages attributable to such claim or other matter and the basis for the Indemnified Person's ’s entitlement to indemnification under Sections 5.1, 7.26.5(b), 15.1 and/or 15.213.1 or 13.2, as the case may be. If the Indemnifying Party does not notify the party Party who sent such notice within 30 thirty (30) days from its receipt of such notice that the Indemnifying Party does not dispute such claim for indemnity, the Indemnifying Party shall be deemed to have disputed such claim.
(e) To the extent any claim, action, suit or proceeding includes one or more Indemnified Claims with respect to an Indemnified Person and one or more third party claims which are not Indemnified Claims with respect to such Indemnified Person, any such non-Indemnified Claim insofar as it is with respect to such Indemnified Person shall not be covered by the indemnity in Sections 5.1, 7.2, 15.1 and 15.2, the Indemnifying Party shall not be obligated to undertake, conduct and control the defense or settlement of such non-Indemnified Claim insofar as it is with respect to such Indemnified Person, and such Indemnified Person shall be responsible for its own defense and settlement of such non-Indemnified Claim. The seeking by a party of indemnity hereunder on behalf of any Indemnified Person with respect to any third party claim or other claim or matter shall not prevent such party from then or thereafter also seeking indemnity hereunder on behalf of any other Indemnified Person with respect to such third party claim or other claim or matter and shall not prevent the other party from seeking indemnity hereunder on behalf of any Indemnified Person with respect to the same third party claim or other claim or matter.
Appears in 1 contract
Samples: Asset Purchase Agreement (BreitBurn Energy Partners L.P.)
Indemnification and Defense Procedures. A Person which that is entitled to be indemnified under Section 5.1, 7.2, 15.1 or and/or 15.2 is herein referred to as an "Indemnified PersonINDEMNIFIED PERSON" and the party which that is obligated to indemnify an Indemnified Person under Section 5.1, 7.2, 15.1 5.1 or 15.2 is herein referred to as the "Indemnifying PartyINDEMNIFYING PARTY" with respect to the matter for which it is obligated to indemnify such Indemnified Person. All claims for indemnification under Sections 5.1, 7.2, 15.1 and 15.2 shall be asserted and resolved as follows:
(a) If a third party claim for which an Indemnified Person is entitled to indemnity under Sections 5.1, 7.25.1(b), 15.1 and/or 15.2 (an "Indemnified ClaimINDEMNIFIED CLAIM") is made against an Indemnified Person, and if Buyer MLP or Seller EECI intends to seek indemnity with respect thereto by or from an Indemnifying Party pursuant to Sections 5.1, 7.25.1(b), 15.1 and/or 15.2, then the party electing to seek indemnity on behalf of such Indemnified indemnified Person shall promptly transmit to the Indemnifying Party a written notice ("Claim NoticeCLAIM NOTICE") (i) notifying such Indemnifying Party of such Indemnified Claim and request indemnity on behalf of such Indemnified Person with respect to such Indemnified Claim under Sections 5.1, 7.25.1(b), 15.1 and/or 15.2, as the case may be, (ii) setting forth the full name, address for all notices and the authorized representatives of such Indemnified Person with respect to such Indemnified Claim, and (iii) describing in reasonable detail the nature of the Indemnified Claim, including a copy of all papers served with respect to such Indemnified Claim (if any) and the basis of such request for indemnification under Sections 5.1, 7.25.1(b), 15.1 and/or 15.2, as the case may be. Failure to provide such Claim Notice promptly shall not affect the right of the Indemnified Person to indemnification hereunder except to the extent the Indemnifying Party is prejudiced thereby; provided that, the Indemnifying Party shall not be obligated to defend, indemnify or otherwise hold harmless an Indemnified Person with respect to a third party claim until a Claim Notice meeting the foregoing requirements is furnished to the Indemnifying Party by the party seeking indemnity hereunder. Within 30 thirty (30) days after receipt of any Claim Notice (the "Election PeriodELECTION PERIOD"), the Indemnifying Party shall notify the party who sent the Claim Notice (A) whether the Indemnifying Party disputes its potential liability to indemnify the Indemnified Person under Sections 5.1, 7.25.1(b), 15.1 and/or 15.2, as the case may be, with respect to such third party claim and (B) whether the Indemnifying Party desires to defend the Indemnified Person against such third party claim; provided that, if the Indemnifying Party fails to so notify the Indemnified Person during the Election Period, the Indemnifying Party shall be deemed to have elected to dispute such liability and not to defend against such third party claim. The aforesaid election or deemed election by the Indemnifying Party not to assume the defense of the Indemnified Person with respect to such Indemnified Claim, however, shall be subject to the right of the Indemnifying Party to subsequently assume the defense of the Indemnified Person with respect to such Indemnified Claim at any time prior to settlement or final determination thereof.
(b) If the Indemnifying Party notifies the party who sent the Claim Notice within the Election Period that the Indemnifying Party (i) does not dispute its liability to indemnify the Indemnified Person under Sections 5.1, 7.25.1(b), 15.1 and/or 15.2, as the case may be (or reserves the right to dispute whether such claim is an Indemnified Claim under Sections 5.1, 7.2, Section 15.1 and/or 15.2) and (ii) elects to assume the defense of such Indemnified Person with respect to such third party claim, then the Indemnifying Party shall have the right to defend, at its sole cost and expense, such third party claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 15.3(b). If an Indemnifying Party elects pursuant to the foregoing to assume the defense of an Indemnified Person with respect to a third party claim which is subsequently determined not to be an Indemnified Claim, then, without limiting any action the Indemnifying Party may have on account of actual fraud, the Indemnifying Party shall not be entitled to recover from the other party or the Indemnified Person the costs and expenses incurred by the Indemnifying Party in providing such defense. The Indemnifying Party shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided that the Indemnifying Party shall not enter into any settlement agreement (or settle or compromise any such third party claim in a manner) which provides for or results in any payment by or liability Liability of the Indemnified Person of or for any damages or other amount, any lien, charge or encumbrance on any property of the Indemnified Person, any finding of responsibility or liability on the part of the Indemnified Person or any sanction or restriction upon the conduct of any business by the Indemnified indemnified Person without the Indemnified Person's express written consent, which consent shall not be unreasonably withheld. The Indemnified Person is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Person is actually entitled to indemnification hereunder), to file, during the Election Period, any motion, answer or other pleadings which the Indemnified Person shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party and not reasonably expected to be prejudicial to the Indemnifying Party. If requested by the Indemnifying Party, the Indemnified Person agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any such third party claim which the Indemnifying Party elects to contest, including the making of any related counterclaim or cross-complaint against any Person (other than a Buyer an MLP Indemnified Person, if the Indemnified Person is a Buyer an MLP Indemnified Person, or a Seller an EECI Indemnified Person, if the Indemnified Person is a Seller an EECI Indemnified Person). The Indemnified Person may participate in, but not control, any defense or settlement of any third party claim controlled by the Indemnifying Party pursuant to this Section 15.3(b), and the Indemnified Person shall bear its own costs and expenses with respect to such participation. The prosecution of the defense of a third party claim with reasonable diligence shall include the taking of such action (including the posting of a bond, deposit or other security) as may be necessary to prevent any action to foreclose a lien against or attachment of the property of the Indemnified Person for payment of such third party claim.
(c) If the Indemnifying Party (i) fails to notify the party who sent the Claim Notice within the Election Period that the Indemnifying Party elects to defend the Indemnified Person pursuant to Section 15.3(b) or (ii) elects to defend the Indemnified Person pursuant to Section 15.3(b) but fails to prosecute the defense of (or to settle) the third party claim with reasonable diligence, then the Indemnified Person shall have the right to defend, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Person is actually entitled to indemnification hereunder), the third party claim by all appropriate proceedings, which proceedings shall be promptly and vigorously prosecuted by the Indemnified Person to a final conclusion or settled. Unless and until such defense is assumed by the Indemnifying Party as permitted in Section 15.3(a), the Indemnified Person shall have full control of such defense and proceedings; provided, however, that the Indemnifying Party, without assuming the defense of such Indemnified Claim, may participate in, but not control, any defense or settlement controlled by the Indemnified Person pursuant to this Section 15.3(c), and the Indemnifying Party shall bear its own costs and expenses with respect to such participation. The Indemnified Person may not enter into any compromise or settlement of such third party claim, without the Indemnifying Party's express written consent, which shall not be unreasonably withheld.
(d) If an Indemnified Person is entitled to indemnity under Sections 5.1, 7.25.1(b), 15.1 and/or 15.2 for a claim or other matter which does not involve a third party claim, and if Buyer MLP or Seller EECI intends to seek indemnity on behalf of an Indemnified Person with respect thereto by or from an Indemnifying Party pursuant to Sections 5.1, 7.25.1(b), 15.1 and/or 15.2, then the party electing to seek indemnity on behalf of an Indemnified Person shall promptly transmit to the Indemnifying Party a written notice describing in reasonable detail the nature of such claim or other matter, the Indemnified Person's best estimate of the amount of damages attributable to such claim or other matter and the basis for the Indemnified Person's entitlement to indemnification under Sections 5.1, 7.25.1(b), 15.1 and/or 15.2, as the case may be. If the Indemnifying Party does not notify the party who sent such notice within 30 thirty (30) days from its receipt of such notice that the Indemnifying Party does not dispute such claim for indemnity, the Indemnifying Party shall be deemed to have disputed such claim.
(e) To the extent any claim, action, suit or proceeding includes one or more Indemnified Claims with respect to an Indemnified Person and one or more third party claims which are not Indemnified Claims with respect to such Indemnified Person, any such non-Indemnified Claim insofar as it is with respect to such Indemnified Person shall not be covered by the indemnity in Sections 5.1, 7.2, 15.1 and 15.2, the Indemnifying Party shall not be obligated to undertake, conduct and control the defense or settlement of such non-Indemnified Claim insofar as it is with respect to such Indemnified Person, and such Indemnified Person shall be responsible for its own defense and settlement of such non-Indemnified Claim. The seeking by a party of indemnity hereunder on behalf of any Indemnified Person with respect to any third party claim or other claim or matter shall not prevent such party from then or thereafter also seeking indemnity hereunder on behalf of any other Indemnified Person with respect to such third party claim or other claim or matter and shall not prevent the other party from seeking indemnity hereunder on behalf of any Indemnified Person with respect to the same third party claim or other claim or matter.
Appears in 1 contract
Indemnification and Defense Procedures. A Person which is entitled to be indemnified under Section 5.1, 7.2, 15.1 17.1 or 15.2 17.2 is herein referred to as an "Indemnified PersonIndemnitee" and the party which is obligated to indemnify an Indemnified Person Indemnitee under Section 5.1, 7.2, 15.1 17.1 or 15.2 17.2 is herein referred to as the "Indemnifying PartyIndemnitor" with respect to the matter for which it is obligated to indemnify such Indemnified PersonIndemnitee. All claims for indemnification under Sections 5.1, 7.2, 15.1 17.1 and 15.2 17.2 shall be asserted and resolved as follows:
(a) If a third party claim Third Party Claim for which an Indemnified Person Indemnitee is entitled to indemnity under Sections 5.1, 7.2, 15.1 17.1 and/or 15.2 17.2 (an "Indemnified Claim") is made against an Indemnified PersonIndemnitee, and if Buyer Lessor or Seller Lessee intends to seek indemnity with respect thereto by or from an Indemnifying Party Indemnitor pursuant to Sections 5.1, 7.2, 15.1 17.1 and/or 15.217.2, then the party electing to seek indemnity on behalf of such Indemnified Person Indemnitee shall promptly transmit to the Indemnifying Party Indemnitor a written notice ("Claim Notice") (i) notifying such Indemnifying Party Indemnitor of such Indemnified Claim and request indemnity on behalf of such Indemnified Person Indemnitee with respect to such Indemnified Claim under Sections 5.1, 7.2, 15.1 17.1 and/or 15.217.2, as the case may be, (ii) setting forth the full name, address for all notices and the authorized representatives of such Indemnified Person Indemnitee with respect to such Indemnified Claim, and (iii) describing in reasonable detail the nature of the Indemnified Claim, including a copy of all papers served with respect to such Indemnified Claim (if any) and the basis of such request for indemnification under Sections 5.1, 7.2, 15.1 17.1 and/or 15.217.2, as the case may be. Failure to provide such Claim Notice promptly shall not affect the right of the Indemnified Person Indemnitee to indemnification hereunder except to the extent the Indemnifying Party Indemnitor is prejudiced thereby; provided that, the Indemnifying Party Indemnitor shall not be obligated to defend, indemnify or otherwise hold harmless an Indemnified Person Indemnitee with respect to a third party claim Third Party Claim until a Claim Notice meeting the foregoing requirements is furnished to the Indemnifying Party Indemnitor by the party seeking indemnity hereunder. Within 30 10 days after receipt of any Claim Notice (the "Election Period"), the Indemnifying Party Indemnitor shall notify the party who sent the Claim Notice (A) whether the Indemnifying Party Indemnitor disputes its potential liability to indemnify the Indemnified Person Indemnitee under Sections 5.1, 7.2, 15.1 17.1 and/or 15.217.2, as the case may be, with respect to such third party claim Third Party Claim and (B) whether the Indemnifying Party Indemnitor desires to defend the Indemnified Person Indemnitee against such third party claimThird Party Claim; provided that, if the Indemnifying Party Indemnitor fails to so notify the Indemnified Person Indemnitee during the Election Period, the Indemnifying Party Indemnitor shall be deemed to have elected to dispute such liability and not to defend against such third party claimThird Party Claim. The aforesaid election or deemed election by the Indemnifying Party Indemnitor not to assume the defense of the Indemnified Person Indemnitee with respect to such Indemnified Claim, however, shall be subject to the right of the Indemnifying Party Indemnitor to subsequently assume the defense of the Indemnified Person Indemnitee with respect to such Indemnified Claim at any time prior to settlement or final determination thereof.
(b) If the Indemnifying Party Indemnitor notifies the party who sent the Claim Notice within the Election Period that the Indemnifying Party Indemnitor (i) does not dispute its liability to indemnify the Indemnified Person Indemnitee under Sections 5.1, 7.2, 15.1 17.1 and/or 15.217.2, as the case may be (or reserves the right to dispute whether such claim is an Indemnified Claim under Sections 5.1, 7.2, 15.1 17.1 and/or 15.217.2) and (ii) elects to assume the defense of such Indemnified Person Indemnitee with respect to such third party claimThird Party Claim, then the Indemnifying Party Indemnitor shall have the right to defend, at its sole cost and expense, such third party claim Third Party Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party Indemnitor to a final conclusion or settled at the discretion of the Indemnifying Party Indemnitor in accordance with this Section 15.3(b17.3(b). If an Indemnifying Party Indemnitor elects pursuant to the foregoing to assume the defense of an Indemnified Person Indemnitee with respect to a third party claim Third Party Claim which is subsequently determined not to be an Indemnified Claim, then, without limiting any action the Indemnifying Party Indemnitor may have on account of actual fraud, the Indemnifying Party Indemnitor shall not be entitled to recover from the other party or the Indemnified Person Indemnitee the costs and expenses incurred by the Indemnifying Party Indemnitor in providing such defense. The Indemnifying Party Indemnitor shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided that thereof provided, however, the Indemnifying Party Indemnitor shall not enter into any settlement agreement (or settle or compromise any such third party claim Third Party Claim in a manner) which provides for or results in any payment by or liability of the Indemnified Person Indemnitee of or for any damages or other amount, any lien, charge or encumbrance Lien on any property of the Indemnified PersonIndemnitee, any finding of responsibility or liability on the part of the Indemnified Person Indemnitee or any sanction or restriction upon the conduct of any business by the Indemnified Person Indemnitee or any obligation or action on the part of the Indemnitee without the Indemnified PersonIndemnitee's express written consent, which consent shall not be unreasonably withheld. The Indemnified Person Indemnitee is hereby authorized, at the sole cost and expense of the Indemnifying Party Indemnitor (but only if the Indemnified Person Indemnitee is actually entitled to indemnification hereunder), to file, during the Election Period, any motion, answer or other pleadings which the Indemnified Person Indemnitee shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party Indemnitor and not reasonably expected to be prejudicial to the Indemnifying PartyIndemnitor. If requested by the Indemnifying PartyIndemnitor, the Indemnified Person Indemnitee agrees, at the sole cost and expense of the Indemnifying PartyIndemnitor, to cooperate with the Indemnifying Party Indemnitor and its counsel in contesting any such third party claim Third Party Claim which the Indemnifying Party Indemnitor elects to contest, including the making of any related counterclaim or cross-complaint against any Person (other than a Buyer Indemnified PersonLessor Indemnitee, if the Indemnified Person Indemnitee is a Buyer Indemnified PersonLessor Indemnitee, or a Seller Indemnified PersonLessee Indemnitee, if the Indemnified Person Indemnitee is a Seller Indemnified PersonLessee Indemnitee). The Indemnified Person Indemnitee may participate in, but not control, any defense or settlement of any third party claim Third Party Claim controlled by the Indemnifying Party Indemnitor pursuant to this Section 15.3(b17.3(b), and the Indemnified Person Indemnitee shall bear its own costs and expenses with respect to such participation. The prosecution of the defense of a third party claim Third Party Claim with reasonable diligence shall include the taking of such action (including the posting of a bond, deposit or other security) as may be necessary to prevent any action to foreclose a lien Lien against or attachment of the property of the Indemnified Person Indemnitee for payment of such third party claimThird Party Claim.
(c) If the Indemnifying Party Indemnitor (i) fails to notify the party who sent the Claim Notice within the Election Period that the Indemnifying Party Indemnitor elects to defend the Indemnified Person Indemnitee pursuant to Section 15.3(b17.3(b) or (ii) elects to defend the Indemnified Person Indemnitee pursuant to Section 15.3(b17.3(b) but fails to prosecute the defense of (or to settle) the third party claim Third Party Claim with reasonable diligence, then the Indemnified Person Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party Indemnitor (but only if the Indemnified Person Indemnitee is actually entitled to indemnification hereunder), the third party claim Third Party Claim by all appropriate proceedings, which proceedings shall be promptly and vigorously prosecuted by the Indemnified Person Indemnitee to a final conclusion or settled. Unless and until such defense is assumed by the Indemnifying Party Indemnitor as permitted in Section 15.3(a17.3(a), the Indemnified Person Indemnitee shall have full control of such defense and proceedings; provided, however, that the Indemnifying PartyIndemnitor, without assuming the defense of such Indemnified Claim, may participate in, but not control, any defense or settlement controlled by the Indemnified Person Indemnitee pursuant to this Section 15.3(c17.3(c), and the Indemnifying Party Indemnitor shall bear its own costs and expenses with respect to such participation. The Indemnified Person Indemnitee may not enter into any compromise or settlement of such third party claimThird Party Claim, without the Indemnifying PartyIndemnitor's express written consent, which shall not be unreasonably withheld.
(d) If an Indemnified Person Indemnitee is entitled to indemnity under Sections 5.1, 7.2, 15.1 17.1 and/or 15.2 17.2 for a claim or other matter which does not involve a third party claimThird Party Claim, and if Buyer Lessor or Seller Lessee intends to seek indemnity on behalf of an Indemnified Person Indemnitee with respect thereto by or from an Indemnifying Party Indemnitor pursuant to Sections 5.1, 7.2, 15.1 17.1 and/or 15.217.2, then the party electing to seek indemnity on behalf of an Indemnified Person Indemnitee shall promptly transmit to the Indemnifying Party Indemnitor a written notice describing in reasonable detail the nature of such claim or other matter, the Indemnified PersonIndemnitee's best estimate of the amount of damages attributable to such claim or other matter and the basis for the Indemnified PersonIndemnitee's entitlement to indemnification under Sections 5.1, 7.2, 15.1 17.1 and/or 15.217.2, as the case may be. If the Indemnifying Party Indemnitor does not notify the party who sent such notice within 30 days from its receipt of such notice that the Indemnifying Party Indemnitor does not dispute such claim for indemnity, the Indemnifying Party Indemnitor shall be deemed to have disputed such claim.
(e) To the extent any claim, action, suit or proceeding includes one or more Indemnified Claims with respect to an Indemnified Person Indemnitee and one or more third party claims Third Party Claims which are not Indemnified Claims with respect to such Indemnified PersonIndemnitee, any such non-Indemnified Claim insofar as it is with respect to such Indemnified Person Indemnitee shall not be covered by the indemnity in Sections 5.1, 7.2, 15.1 17.1 and 15.217.2, the Indemnifying Party Indemnitor shall not be obligated to undertake, conduct and control the defense or settlement of such non-Indemnified Claim insofar as it is with respect to such Indemnified PersonIndemnitee, and such Indemnified Person Indemnitee shall be responsible for its own defense and settlement of such non-Indemnified Claim. The seeking by a party of indemnity hereunder on behalf of any Indemnified Person Indemnitee with respect to any third party claim Third Party Claim or other claim or matter shall not prevent such such. party from then or thereafter also seeking indemnity hereunder on behalf of any other Indemnified Person Indemnitee with respect to such third party claim Third Party Claim or other claim or matter and shall not prevent the other party from seeking indemnity hereunder on behalf of any Indemnified Person Indemnitee with respect to the same third party claim Third Party Claim or other claim or matter.
Appears in 1 contract
Samples: Pipeline and Terminal Lease Agreement (Valero Energy Corp/Tx)
Indemnification and Defense Procedures. A Person which is entitled to be indemnified under Section 5.1, 7.2, 15.1 17.1 or 15.2 17.2 is herein referred to as an "Indemnified PersonIndemnitee" and the party which is obligated to indemnify an Indemnified Person Indemnitee under Section 5.1, 7.2, 15.1 17.1 or 15.2 17.2 is herein referred to as the "Indemnifying PartyIndemnitor" with respect to the matter for which it is obligated to indemnify such Indemnified PersonIndemnitee. All claims for indemnification under Sections 5.1, 7.2, 15.1 17.1 and 15.2 17.2 shall be asserted and resolved as follows:
(a) If a third party claim Third Party Claim for which an Indemnified Person Indemnitee is entitled to indemnity under Sections 5.1, 7.2, 15.1 17.1 and/or 15.2 17.2 (an "Indemnified Claim") is made against an Indemnified PersonIndemnitee, and if Buyer Lessor or Seller Lessee intends to seek indemnity with respect thereto by or from an Indemnifying Party Indemnitor pursuant to Sections 5.1, 7.2, 15.1 17.1 and/or 15.217.2, then the party electing to seek indemnity on behalf of such Indemnified Person Indemnitee shall promptly transmit to the Indemnifying Party Indemnitor a written notice ("Claim Notice") (i) notifying such Indemnifying Party Indemnitor of such Indemnified Claim and request indemnity on behalf of such Indemnified Person Indemnitee with respect to such Indemnified Claim under Sections 5.1, 7.2, 15.1 17.1 and/or 15.217.2, as the case may be, (ii) setting forth the full name, address for all notices and the authorized representatives of such Indemnified Person Indemnitee with respect to such Indemnified Claim, and (iii) describing in reasonable detail the nature of the Indemnified Claim, including a copy of all papers served with respect to such Indemnified Claim (if any) and the basis of such request for indemnification under Sections 5.1, 7.2, 15.1 17.1 and/or 15.217.2, as the case may be. Failure to provide such Claim Notice promptly shall not affect the right of the Indemnified Person Indemnitee to indemnification hereunder except to the extent the Indemnifying Party Indemnitor is prejudiced thereby; provided that, the Indemnifying Party Indemnitor shall not be obligated to defend, indemnify or otherwise hold harmless an Indemnified Person Indemnitee with respect to a third party claim Third Party Claim until a Claim Notice meeting the foregoing requirements is furnished to the Indemnifying Party Indemnitor by the party seeking indemnity hereunder. Within 30 10 days after receipt of any Claim Notice (the "Election Period"), the Indemnifying Party Indemnitor shall notify the party who sent the Claim Notice (A) whether the Indemnifying Party Indemnitor disputes its potential liability to indemnify the Indemnified Person Indemnitee under Sections 5.1, 7.2, 15.1 17.1 and/or 15.217.2, as the case may be, with respect to such third party claim Third Party Claim and (B) whether the Indemnifying Party Indemnitor desires to defend the Indemnified Person Indemnitee against such third party claimThird Party Claim; provided that, if the Indemnifying Party Indemnitor fails to so notify the Indemnified Person Indemnitee during the Election Period, the Indemnifying Party Indemnitor shall be deemed to have elected to dispute such liability and not to defend against such third party claimThird Party Claim. The aforesaid election or deemed election by the Indemnifying Party Indemnitor not to assume the defense of the Indemnified Person Indemnitee with respect to such Indemnified Claim, however, shall be subject to the right of the Indemnifying Party Indemnitor to subsequently assume the defense of the Indemnified Person Indemnitee with respect to such Indemnified Claim at any time prior to settlement or final determination thereof.
(b) If the Indemnifying Party Indemnitor notifies the party who sent the Claim Notice within the Election Period that the Indemnifying Party Indemnitor (i) does not dispute its liability to indemnify the Indemnified Person Indemnitee under Sections 5.1, 7.2, 15.1 17.1 and/or 15.217.2, as the case may be (or reserves the right to dispute whether such claim is an Indemnified Claim under Sections 5.1, 7.2, 15.1 17.1 and/or 15.217.2) and (ii) elects to assume the defense of such Indemnified Person Indemnitee with respect to such third party claimThird Party Claim, then the Indemnifying Party Indemnitor shall have the right to defend, at its sole cost and expense, such third party claim Third Party Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party Indemnitor to a final conclusion or settled at the discretion of the Indemnifying Party Indemnitor in accordance with this Section 15.3(b17.3(b). If an Indemnifying Party Indemnitor elects pursuant to the foregoing to assume the defense of an Indemnified Person Indemnitee with respect to a third party claim Third Party Claim which is subsequently determined not to be an Indemnified Claim, then, without limiting any action the Indemnifying Party Indemnitor may have on account of actual fraud, the Indemnifying Party Indemnitor shall not be entitled to recover from the other party or the Indemnified Person Indemnitee the costs and expenses incurred by the Indemnifying Party Indemnitor in providing such defense. The Indemnifying Party Indemnitor shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided that thereof provided, however, the Indemnifying Party Indemnitor shall not enter into any settlement agreement (or settle or compromise any such third party claim Third Party Claim in a manner) which provides for or results in any payment by or liability of the Indemnified Person Indemnitee of or for any damages or other amount, any lien, charge or encumbrance Lien on any property of the Indemnified PersonIndemnitee, any finding of responsibility or liability on the part of the Indemnified Person Indemnitee or any sanction or restriction upon the conduct of any business by the Indemnified Person Indemnitee or any obligation or action on the part of the Indemnitee without the Indemnified PersonIndemnitee's express written consent, which consent shall not be unreasonably withheld. The Indemnified Person Indemnitee is hereby authorized, at the sole cost and expense of the Indemnifying Party Indemnitor (but only if the Indemnified Person Indemnitee is actually entitled to indemnification hereunder), to file, during the Election Period, any motion, answer or other pleadings which the Indemnified Person Indemnitee shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party Indemnitor and not reasonably expected to be prejudicial to the Indemnifying PartyIndemnitor. If requested by the Indemnifying PartyIndemnitor, the Indemnified Person Indemnitee agrees, at the sole cost and expense of the Indemnifying PartyIndemnitor, to cooperate with the Indemnifying Party Indemnitor and its counsel in contesting any such third party claim Third Party Claim which the Indemnifying Party Indemnitor elects to contest, including the making of any related counterclaim or cross-complaint against any Person (other than a Buyer Indemnified PersonLessor Indemnitee, if the Indemnified Person Indemnitee is a Buyer Indemnified PersonLessor Indemnitee, or a Seller Indemnified PersonLessee Indemnitee, if the Indemnified Person Indemnitee is a Seller Indemnified PersonLessee Indemnitee). The Indemnified Person Indemnitee may participate in, but not control, any defense or settlement of any third party claim Third Party Claim controlled by the Indemnifying Party Indemnitor pursuant to this Section 15.3(b17.3(b), and the Indemnified Person Indemnitee shall bear its own costs and expenses with respect to such participation. The prosecution of the defense of a third party claim Third Party Claim with reasonable diligence shall include the taking of such action (including the posting of a bond, deposit or other security) as may be necessary to prevent any action to foreclose a lien Lien against or attachment of the property of the Indemnified Person Indemnitee for payment of such third party claimThird Party Claim.
(c) If the Indemnifying Party Indemnitor (i) fails to notify the party who sent the Claim Notice within the Election Period that the Indemnifying Party Indemnitor elects to defend the Indemnified Person Indemnitee pursuant to Section 15.3(b17.3(b) or (ii) elects to defend the Indemnified Person Indemnitee pursuant to Section 15.3(b17.3(b) but fails to prosecute the defense of (or to settle) the third party claim Third Party Claim with reasonable diligence, then the Indemnified Person Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party Indemnitor (but only if the Indemnified Person Indemnitee is actually entitled to indemnification hereunder), the third party claim Third Party Claim by all appropriate proceedings, which proceedings shall be promptly and vigorously prosecuted by the Indemnified Person Indemnitee to a final conclusion or settled. Unless and until such defense is assumed by the Indemnifying Party Indemnitor as permitted in Section 15.3(a17.3(a), the Indemnified Person Indemnitee shall have full control of such defense and proceedings; provided, however, that the Indemnifying PartyIndemnitor, without assuming the defense of such Indemnified Claim, may participate in, but not control, any defense or settlement controlled by the Indemnified Person Indemnitee pursuant to this Section 15.3(c17.3(c), and the Indemnifying Party Indemnitor shall bear its own costs and expenses with respect to such participation. The Indemnified Person Indemnitee may not enter into any compromise or settlement of such third party claimThird Party Claim, without the Indemnifying Party's Indemnitor' s express written consent, which shall not be unreasonably withheld.
(d) If an Indemnified Person Indemnitee is entitled to indemnity under Sections 5.1, 7.2, 15.1 17.1 and/or 15.2 17.2 for a claim or other matter which does not involve a third party claimThird Party Claim, and if Buyer Lessor or Seller Lessee intends to seek indemnity on behalf of an Indemnified Person Indemnitee with respect thereto by or from an Indemnifying Party Indemnitor pursuant to Sections 5.1, 7.2, 15.1 17.1 and/or 15.217.2, then the party electing to seek indemnity on behalf of an Indemnified Person Indemnitee shall promptly transmit to the Indemnifying Party Indemnitor a written notice describing in reasonable detail the nature of such claim or other matter, the Indemnified PersonIndemnitee's best estimate of the amount of damages attributable to such claim or other matter and the basis for the Indemnified PersonIndemnitee's entitlement to indemnification under Sections 5.1, 7.2, 15.1 17.1 and/or 15.217.2, as the case may be. If the Indemnifying Party Indemnitor does not notify the party who sent such notice within 30 days from its receipt of such notice that the Indemnifying Party Indemnitor does not dispute such claim for indemnity, the Indemnifying Party Indemnitor shall be deemed to have disputed such claim.
(e) To the extent any claim, action, suit or proceeding includes one or more Indemnified Claims with respect to an Indemnified Person Indemnitee and one or more third party claims Third Party Claims which are not Indemnified Claims with respect to such Indemnified PersonIndemnitee, any such non-Indemnified Claim insofar as it is with respect to such Indemnified Person Indemnitee shall not be covered by the indemnity in Sections 5.1, 7.2, 15.1 17.1 and 15.217.2, the Indemnifying Party Indemnitor shall not be obligated to undertake, conduct and control the defense or settlement of such non-Indemnified Claim insofar as it is with respect to such Indemnified PersonIndemnitee, and such Indemnified Person Indemnitee shall be responsible for its own defense and settlement of such non-Indemnified Claim. The seeking by a party of indemnity hereunder on behalf of any Indemnified Person Indemnitee with respect to any third party claim Third Party Claim or other claim or matter shall not prevent such party from then or thereafter also seeking indemnity hereunder on behalf of any other Indemnified Person Indemnitee with respect to such third party claim Third Party Claim or other claim or matter and shall not prevent the other party from seeking indemnity hereunder on behalf of any Indemnified Person Indemnitee with respect to the same third party claim Third Party Claim or other claim or matter.
Appears in 1 contract
Indemnification and Defense Procedures. A Person which is entitled to be indemnified under Section 5.1, 7.2, 15.1 or 15.2 is herein referred to as an "Indemnified Person" and the party which is obligated to indemnify an Indemnified Person under Section 5.1, 7.2, 15.1 or 15.2 is herein referred to as the "Indemnifying Party" with respect to the matter for which it is obligated to indemnify such Indemnified Person. All claims Claims for indemnification under Sections 5.1, 7.2, 15.1 and 15.2 this Agreement shall be asserted and resolved as follows:
(a) If a third party claim for any Person who or which an Indemnified Person is entitled to indemnity seek indemnification under Sections 5.1, 7.2, 15.1 and/or 15.2 this Agreement (an "“Indemnified Claim"Party”) is made receives notice of the assertion or commencement of any claim asserted against an Indemnified PersonParty by a third Person (“Third Party Claim”) in respect of any matter that is subject to indemnification under this Agreement, and if Buyer or Seller intends the Indemnified Party shall promptly (i) notify the Party obligated to seek indemnity with respect thereto by or from an Indemnifying indemnify the Indemnified Party pursuant to Sections 5.1this Agreement, 7.2, 15.1 and/or 15.2, then (the party electing to seek indemnity on behalf “Indemnifying Party”) of such Indemnified Person shall promptly the Third Party Claim and (ii) transmit to the Indemnifying Party a written notice ("“Claim Notice") (i) notifying such Indemnifying Party of such Indemnified Claim and request indemnity on behalf of such Indemnified Person with respect to such Indemnified Claim under Sections 5.1, 7.2, 15.1 and/or 15.2, as the case may be, (ii) setting forth the full name, address for all notices and the authorized representatives of such Indemnified Person with respect to such Indemnified Claim, and (iii”) describing in reasonable detail the nature of the Indemnified Third Party Claim, including a copy of all papers served with respect to such Indemnified Claim claim (if any) ), the Indemnified Party’s best estimate of the amount of Covered Liabilities attributable to the Third Party Claim and the basis of such the Indemnified Party’s request for indemnification under Sections 5.1, 7.2, 15.1 and/or 15.2, as the case may bethis Agreement. Failure to timely provide such Claim Notice promptly shall not affect the right of the Indemnified Person to Party’s indemnification hereunder hereunder, except to the extent the Indemnifying Party is materially prejudiced thereby; provided that, the Indemnifying Party shall not be obligated to defend, indemnify by such delay or otherwise hold harmless an Indemnified Person with respect to a third party claim until a Claim Notice meeting the foregoing requirements is furnished to the Indemnifying Party by the party seeking indemnity hereunder. Within 30 days after receipt of any Claim Notice (the "Election Period"), the Indemnifying Party shall notify the party who sent the Claim Notice (A) whether the Indemnifying Party disputes its potential liability to indemnify the Indemnified Person under Sections 5.1, 7.2, 15.1 and/or 15.2, as the case may be, with respect to such third party claim and (B) whether the Indemnifying Party desires to defend the Indemnified Person against such third party claim; provided that, if the Indemnifying Party fails to so notify the Indemnified Person during the Election Period, the Indemnifying Party shall be deemed to have elected to dispute such liability and not to defend against such third party claim. The aforesaid election or deemed election by the Indemnifying Party not to assume the defense of the Indemnified Person with respect to such Indemnified Claim, however, shall be subject to the right of the Indemnifying Party to subsequently assume the defense of the Indemnified Person with respect to such Indemnified Claim at any time prior to settlement or final determination thereofomission.
(b) If the Indemnifying Party notifies the party who sent the Claim Notice within the Election Period that the Indemnifying Party (i) does not dispute its liability to indemnify the Indemnified Person under Sections 5.1, 7.2, 15.1 and/or 15.2, as the case may be (or reserves the right to dispute whether such claim is an Indemnified Claim under Sections 5.1, 7.2, 15.1 and/or 15.2) and (ii) elects to assume the defense of such Indemnified Person with respect to such third party claim, then the The Indemnifying Party shall have the right to defend, at its sole cost and expense, the Indemnified Party against such third party claim by all appropriate proceedings, which proceedings shall be prosecuted diligently Third Party Claim with counsel selected by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 15.3(b). If an Indemnifying Party elects pursuant to the foregoing to assume the defense of an Indemnified Person with respect to a third party claim which is subsequently determined not to be an Indemnified Claim, then, without limiting any action the Indemnifying Party may have on account of actual fraud, the Indemnifying Party shall not be entitled to recover from the other party or the Indemnified Person the costs and expenses incurred by the Indemnifying Party in providing such defense. The Indemnifying Party shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided that the Indemnifying Party shall not enter into any settlement agreement (or settle or compromise any such third party claim in a manner) which provides for or results in any payment by or liability of the Indemnified Person of or for any damages or other amount, any lien, charge or encumbrance on any property of the Indemnified Person, any finding of responsibility or liability on the part of the Indemnified Person or any sanction or restriction upon the conduct of any business by the Indemnified Person without the Indemnified Person's express written consent, which consent shall not be unreasonably withheld. The Indemnified Person is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Person is actually entitled to indemnification hereunder), to file, during the Election Period, any motion, answer or other pleadings which the Indemnified Person shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party and not reasonably expected to be prejudicial to the Indemnifying Party. If requested by the Indemnifying Party, the Indemnified Person agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any such third party claim which the Indemnifying Party elects to contest, including the making of any related counterclaim or cross-complaint against any Person (other than a Buyer Indemnified Person, if the Indemnified Person is a Buyer Indemnified Person, or a Seller Indemnified Person, if the Indemnified Person is a Seller Indemnified Person). The Indemnified Person may participate in, but not control, any defense or settlement of any third party claim controlled by the Indemnifying Party pursuant to this Section 15.3(b), and the Indemnified Person shall bear its own costs and expenses with respect to such participation. The prosecution of the defense of a third party claim with reasonable diligence shall include the taking of such action (including the posting of a bond, deposit or other security) as may be necessary to prevent any action to foreclose a lien against or attachment of the property of the Indemnified Person for payment of such third party claim.
(c) If the Indemnifying Party (i) fails to notify the party who sent the Claim Notice within the Election Period that the Indemnifying Party elects to defend the Indemnified Person pursuant to Section 15.3(b) or (ii) elects to defend the Indemnified Person pursuant to Section 15.3(b) but fails to prosecute the defense of (or to settle) the third party claim with reasonable diligence, then the Indemnified Person shall have the right to defend, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Person is actually entitled to indemnification hereunder), the third party claim by all appropriate proceedings, which proceedings shall be promptly and vigorously prosecuted by the Indemnified Person to a final conclusion or settled. Unless and until such defense is assumed by the Indemnifying Party as permitted in Section 15.3(a), the Indemnified Person shall have full control of such defense and proceedings; provided, however, that the Indemnifying Party, without assuming the defense of such Indemnified Claim, may participate in, but not control, any defense or settlement controlled by the Indemnified Person pursuant to this Section 15.3(c), and the Indemnifying Party shall bear its own costs and expenses with respect to such participation. The Indemnified Person may not enter into any compromise or settlement of such third party claim, without the Indemnifying Party's express written consent, which shall not be unreasonably withheld.
(d) If an Indemnified Person is entitled to indemnity under Sections 5.1, 7.2, 15.1 and/or 15.2 for a claim or other matter which does not involve a third party claim, and if Buyer or Seller intends to seek indemnity on behalf of an Indemnified Person with respect thereto by or from an Indemnifying Party pursuant to Sections 5.1, 7.2, 15.1 and/or 15.2, then the party electing to seek indemnity on behalf of an Indemnified Person shall promptly transmit to the Indemnifying Party a written notice describing in reasonable detail the nature of such claim or other matter, the Indemnified Person's best estimate of the amount of damages attributable to such claim or other matter and the basis for the Indemnified Person's entitlement to indemnification under Sections 5.1, 7.2, 15.1 and/or 15.2, as the case may be. If the Indemnifying Party does not notify the party who sent such notice within 30 days from its receipt of such notice that the Indemnifying Party does not dispute such claim for indemnity, the Indemnifying Party shall be deemed to have disputed such claim.
(e) To the extent any claim, action, suit or proceeding includes one or more Indemnified Claims with respect to an Indemnified Person and one or more third party claims which are not Indemnified Claims with respect to such Indemnified Person, any such non-Indemnified Claim insofar as it is with respect to such Indemnified Person shall not be covered by the indemnity in Sections 5.1, 7.2, 15.1 and 15.2, the Indemnifying Party shall not be obligated to undertake, conduct and control the defense or settlement of such non-Indemnified Claim insofar as it is with respect to such Indemnified Person, and such Indemnified Person shall be responsible for its own defense and settlement of such non-Indemnified Claim. The seeking by a party of indemnity hereunder on behalf of any Indemnified Person with respect to any third party claim or other claim or matter shall not prevent such party from then or thereafter also seeking indemnity hereunder on behalf of any other Indemnified Person with respect to such third party claim or other claim or matter and shall not prevent the other party from seeking indemnity hereunder on behalf of any Indemnified Person with respect to the same third party claim or other claim or matter.who
Appears in 1 contract
Indemnification and Defense Procedures. A Person which is entitled to be indemnified under Section 5.1, 7.2, 15.1 or 15.2 is herein referred to as an "Indemnified Person" and the party which is obligated to indemnify an Indemnified Person under Section 5.1, 7.2, 15.1 or 15.2 is herein referred to as the "Indemnifying Party" with respect to the matter for which it is obligated to indemnify such Indemnified Person. All claims Claims for indemnification under Sections 5.1, 7.2, 15.1 and 15.2 this Agreement shall be asserted and resolved as follows:
(a) If a third party claim for any Person who or which an Indemnified Person is entitled to indemnity seek indemnification under Sections 5.1, 7.2, 15.1 and/or 15.2 this Agreement (an "“Indemnified Claim"Party”) is made receives notice of the assertion or commencement of any claim asserted against an Indemnified PersonParty by a third Person (“Third Party Claim”) in respect of any matter that is subject to indemnification under this Agreement, and if Buyer or Seller intends the Indemnified Party shall promptly (i) notify the Party obligated to seek indemnity with respect thereto by or from an Indemnifying indemnify the Indemnified Party pursuant to Sections 5.1this Agreement, 7.2, 15.1 and/or 15.2, then (the party electing to seek indemnity on behalf “Indemnifying Party”) of such Indemnified Person shall promptly the Third Party Claim and (ii) transmit to the Indemnifying Party a written notice ("“Claim Notice") (i) notifying such Indemnifying Party of such Indemnified Claim and request indemnity on behalf of such Indemnified Person with respect to such Indemnified Claim under Sections 5.1, 7.2, 15.1 and/or 15.2, as the case may be, (ii) setting forth the full name, address for all notices and the authorized representatives of such Indemnified Person with respect to such Indemnified Claim, and (iii”) describing in reasonable detail the nature of the Indemnified Third Party Claim, including a copy of all papers served with respect to such Indemnified Claim claim (if any) ), the Indemnified Party’s best estimate of the amount of Covered Liabilities attributable to the Third Party Claim and the basis of such the Indemnified Party’s request for indemnification under Sections 5.1, 7.2, 15.1 and/or 15.2, as the case may bethis Agreement. Failure to timely provide such Claim Notice promptly shall not affect the right of the Indemnified Person to Party’s indemnification hereunder hereunder, except to the extent the Indemnifying Party is materially prejudiced thereby; provided that, the Indemnifying Party shall not be obligated to defend, indemnify by such delay or otherwise hold harmless an Indemnified Person with respect to a third party claim until a Claim Notice meeting the foregoing requirements is furnished to the Indemnifying Party by the party seeking indemnity hereunder. Within 30 days after receipt of any Claim Notice (the "Election Period"), the Indemnifying Party shall notify the party who sent the Claim Notice (A) whether the Indemnifying Party disputes its potential liability to indemnify the Indemnified Person under Sections 5.1, 7.2, 15.1 and/or 15.2, as the case may be, with respect to such third party claim and (B) whether the Indemnifying Party desires to defend the Indemnified Person against such third party claim; provided that, if the Indemnifying Party fails to so notify the Indemnified Person during the Election Period, the Indemnifying Party shall be deemed to have elected to dispute such liability and not to defend against such third party claim. The aforesaid election or deemed election by the Indemnifying Party not to assume the defense of the Indemnified Person with respect to such Indemnified Claim, however, shall be subject to the right of the Indemnifying Party to subsequently assume the defense of the Indemnified Person with respect to such Indemnified Claim at any time prior to settlement or final determination thereofomission.
(b) If the Indemnifying Party notifies the party who sent the Claim Notice within the Election Period that the Indemnifying Party admits (iin writing) does not dispute its liability obligation to indemnify the Indemnified Person under Sections 5.1, 7.2, 15.1 and/or 15.2, as the case may be (or reserves the right to dispute whether such claim is an Indemnified Claim under Sections 5.1, 7.2, 15.1 and/or 15.2) and (ii) elects to assume the defense of such Indemnified Person Party with respect to such third party claimany Third Party Claim, then the Indemnifying Party shall have the right to defend, at its sole cost and expense, the Indemnified Party against such third party claim Third Party Claim with counsel selected by the Indemnifying Party (who shall be reasonably satisfactory to the Indemnified Party), by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled settlement at the discretion of the Indemnifying Party in accordance with this Section 15.3(b13.3(b). If an Indemnifying Party elects pursuant to the foregoing to assume the defense of an Indemnified Person with respect to a third party claim which is subsequently determined not to be an Indemnified Claim, then, without limiting any action the Indemnifying Party may have on account of actual fraud, the Indemnifying Party shall not be entitled to recover from the other party or the Indemnified Person the costs and expenses incurred by the Indemnifying Party in providing such defense. The Indemnifying Party shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided that the Indemnifying Party shall not enter into any settlement agreement (or settle or compromise any such third party claim in a manner) which provides for or results in any payment by or liability without the written consent of the Indemnified Party; provided further, that such consent shall not be required if (i) the settlement agreement contains a complete and unconditional general release by the third Person of or for any damages or other amountasserting the claim to all Indemnified Parties affected by the claim, any lien, charge or encumbrance on any property of (ii) the Indemnified Person, any finding of responsibility or liability on the part of the Indemnified Person or settlement agreement does not contain any sanction or restriction upon the conduct of any business by the Indemnified Person without Party or its Affiliates and (iii) the settlement agreement does not create a financial or other obligation on the part of the Indemnified Person's express written consent, which consent shall not be unreasonably withheld. The Indemnified Party or any other Person is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Person is actually entitled to indemnification hereunder), to file, during the Election Period, any motion, answer or other pleadings which the Indemnified Person shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party and not reasonably expected to be prejudicial to than the Indemnifying Party. If requested by the Indemnifying Party, the Indemnified Person Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any such third party claim which Third Party Claim that the Indemnifying Party elects to contest, including the making of any reasonably related counterclaim against the Person asserting the Third Party Claim or cross-any cross complaint against any Person (other than a Buyer Indemnified Person, if and making the books and records and personnel of the Indemnified Person is a Buyer Indemnified Person, or a Seller Indemnified Person, if the Indemnified Person is a Seller Indemnified Person)Party reasonably available during normal business hours. The Indemnified Person Party may participate in, but not control, any defense or settlement of any third party claim Third Party Claim controlled by the Indemnifying Party pursuant to this Section 15.3(b13.3(b), and the Indemnified Person Party shall bear its own costs and expenses with respect to such participation. The prosecution of the defense of a third party claim with reasonable diligence shall include the taking of such action (including the posting of a bond, deposit or other security) as may be necessary to prevent any action to foreclose a lien against or attachment of the property of the Indemnified Person for payment of such third party claim.
(c) If the Indemnifying Party does not admit (iin writing) fails its obligation to notify the party who sent the Claim Notice within the Election Period that the Indemnifying Party elects to defend indemnify the Indemnified Person Party pursuant to Section 15.3(b) or (ii) elects to defend the Indemnified Person pursuant to Section 15.3(b) but fails to prosecute the defense of (or to settle) the third party claim with reasonable diligence13.3(b), then the Indemnified Person Party shall have the right to defend, at the sole and be reimbursed for its reasonable cost and expense of the Indemnifying Party (but only if the Indemnified Person Party is actually entitled to indemnification hereunder) in regard to the Third Party Claim with counsel selected by the Indemnified Party (who shall be reasonably satisfactory to the Indemnifying Party), the third party claim by all appropriate proceedings, which proceedings shall be promptly and vigorously prosecuted diligently by the Indemnified Person to a final conclusion or settledParty. Unless and until In such defense is assumed by the Indemnifying Party as permitted in Section 15.3(a)circumstances, the Indemnified Person Party shall defend any such Third Party Claim in good faith and have full control of such defense and proceedings; provided, however, that the Indemnified Party may not enter into any compromise or settlement of such Third Party Claim if indemnification is to be sought hereunder, without the Indemnifying Party’s consent (which consent shall not be unreasonably withheld, without assuming the defense of such Indemnified Claim, conditioned or delayed). The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Person Party pursuant to this Section 15.3(c13.3(c), and the Indemnifying Party shall bear its own costs and expenses with respect to such participation. The Indemnified Person may not enter into any compromise or settlement of such third party claim, without the Indemnifying Party's express written consent, which shall not be unreasonably withheld.
(d) If Any claim by an Indemnified Person is entitled to indemnity Party for indemnification under Sections 5.1, 7.2, 15.1 and/or 15.2 for a claim or other matter which this Agreement that does not involve result from a third party claim, and if Buyer or Seller intends to seek indemnity on behalf of an Indemnified Person with respect thereto Third Party Claim (a “Direct Claim”) will be asserted by or from an Indemnifying Party pursuant to Sections 5.1, 7.2, 15.1 and/or 15.2, then the party electing to seek indemnity on behalf of an Indemnified Person shall promptly transmit to giving the Indemnifying Party a reasonably prompt written notice describing thereof, but in any event not later than thirty (30) days after the Indemnified Party becomes aware of such Direct Claim. Failure to timely provide such notice of a Direct Claim shall not affect the right of the Indemnified Party’s indemnification hereunder, except to the extent the Indemnifying Party is materially prejudiced by such delay or omission. Such notice by the Indemnified Party will describe the Direct Claim in reasonable detail detail, will include copies of all available material written evidence thereof and will indicate the nature estimated amount, if reasonably practicable, of such claim damages that has been or other matter, may be sustained by the Indemnified Person's best estimate Party. The Indemnifying Party will have a period of the amount of damages attributable fifteen (15) Business Days within which to respond in writing to such claim or other matter and the basis for the Indemnified Person's entitlement to indemnification under Sections 5.1, 7.2, 15.1 and/or 15.2, as the case may beDirect Claim. If the Indemnifying Party does not notify the party who sent so respond within such notice within 30 days from its receipt of such notice that the Indemnifying Party does not dispute such claim for indemnityfifteen (15) Business Day period, the Indemnifying Party will be deemed to have rejected such claim, in which event the Indemnified Party will be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Agreement.
(e) Notwithstanding anything to the contrary contained in this Agreement, Seller shall indemnify, defend, hold harmless and reimburse the Buyer Indemnified Persons from and against any and all Covered Liabilities suffered or incurred by a Buyer Indemnified Person as a result of or arising out of the Schedule 13.2(c) Litigation at its sole cost and expense. Seller shall have full control of the defense and proceedings in or relating to the Schedule 13.2(c) Litigation, including any compromise or settlement thereof (subject to the final sentence of this clause (e)) and, in the event Buyer, any Acquired Company or any of their respective Affiliates settles all or any part of the Schedule 13.2(c) Litigation over the objection of Seller, Seller’s indemnity obligations set forth in Section 13.2(c) and its obligations under this Section 13.3(e) (including but not limited to any right to such indemnity hereunder or thereunder) with respect to such settled claims shall be deemed to have disputed such claim.
(e) To the extent been waived by Buyer, and Buyer shall not be entitled to any claim, action, suit or proceeding includes one or more Indemnified Claims with respect to an Indemnified Person and one or more third party claims which are not Indemnified Claims payment by Seller with respect to such settled claims. Buyer agrees that it shall, and it shall cause each Acquired Company and any of their respective Affiliates to, (i) reasonably cooperate, at Seller’s sole cost and expense, in the defense and proceedings in or relating to the Schedule 13.2(c) Litigation (including, without limitation, bringing any counterclaim or cross-complaint against any Person), (ii) promptly provide to Seller all information related to or in connection with the Schedule 13.2(c) Litigation and without costs and expenses to Buyer, the Acquired Companies and any of their respective Affiliates, and (iii) make all employees of the Acquired Companies and their respective Affiliates reasonably available for consultation, deposition, and trial testimony, without the necessity of the subpoena and without costs and expenses to Buyer, the Acquired Companies and their respective Affiliates; provided, that Seller shall not be charged for the costs of any lost time for employees. Neither the Buyer, the Acquired Companies nor any other Person on their behalf shall file any motion, answer or other pleading in connection with the Schedule 13.2(c) Litigation without the prior written consent of Seller. Seller shall not, without the written consent of Buyer, settle the Schedule 13.2(c) Litigation or consent to the entry of any judgment with respect thereto unless (i) the settlement agreement or judgment contains a complete and unconditional general release by the Person asserting the claim to all Indemnified PersonParties affected by the claim, (ii) the settlement agreement or judgment does not contain any such non-sanction or restriction upon the conduct of any business by the Indemnified Claim insofar as it is Party or its Affiliates and (iii) the settlement agreement does not create a financial or other obligation on the part of the Indemnified Party other than a financial obligation with respect to such which the Indemnified Person shall not be covered by the indemnity in Sections 5.1, 7.2, 15.1 and 15.2, the Indemnifying Party shall not be obligated to undertake, conduct and control the defense or settlement of such non-Indemnified Claim insofar as it party is with respect to such Indemnified Person, and such Indemnified Person shall be responsible for its own defense and settlement of such non-Indemnified Claim. The seeking by a party of indemnity hereunder on behalf of any Indemnified Person with respect to any third party claim or other claim or matter shall not prevent such party from then or thereafter also seeking indemnity hereunder on behalf of any other Indemnified Person with respect to such third party claim or other claim or matter and shall not prevent the other party from seeking indemnity hereunder on behalf of any Indemnified Person with respect to the same third party claim or other claim or matterfully indemnified hereunder.
Appears in 1 contract
Samples: Equity Purchase Agreement (Helix Energy Solutions Group Inc)
Indemnification and Defense Procedures. A Person which is entitled to be indemnified under Section 5.1, 7.2, 15.1 13.1 or 15.2 13.2 is herein referred to as an "“Indemnified Person" ” and the party Party which is obligated to indemnify an Indemnified Person under Section 5.1, 7.2, 15.1 13.1 or 15.2 13.2 is herein referred to as the "“Indemnifying Party" ” with respect to the matter for which it is obligated to indemnify such Indemnified Person. All claims for indemnification under Sections 5.1, 7.2, 15.1 13.1 and 15.2 13.2 shall be asserted and resolved as follows:
(a) If a third third-party claim for which an Indemnified Person is entitled to indemnity under Sections 5.1, 7.2, 15.1 13.1 and/or 15.2 13.2 (an "“Indemnified Claim"”) is made against an Indemnified Person, and if Buyer or Seller intends to seek indemnity with respect thereto by or from an Indemnifying Party pursuant to Sections 5.1, 7.2, 15.1 13.1 and/or 15.213.2, then the party Party electing to seek indemnity on behalf of such Indemnified Person shall promptly transmit to the Indemnifying Party a written notice ("“Claim Notice"”) (i) notifying such Indemnifying Party of such Indemnified Claim and request requesting indemnity on behalf of such Indemnified Person with respect to such Indemnified Claim under Sections 5.1, 7.2, 15.1 13.1 and/or 15.213.2, as the case may be, (ii) setting forth the full name, address for all notices and the authorized representatives of such Indemnified Person with respect to such Indemnified Claim, and (iii) describing in reasonable detail the nature of the Indemnified Claim, including a copy of all papers served with respect to such Indemnified Claim (if any) and the basis of such request for indemnification under Sections 5.1, 7.2, 15.1 13.1 and/or 15.213.2, as the case may be. Failure to provide such Claim Notice promptly shall not affect the right of the Indemnified Person to indemnification hereunder except to the extent the Indemnifying Party is prejudiced thereby; provided that, the Indemnifying Party shall not be obligated to defend, indemnify or otherwise hold harmless an Indemnified Person with respect to a third third-party claim until a Claim Notice meeting the foregoing requirements is furnished to the Indemnifying Party by the party Party seeking indemnity hereunder. Within 30 thirty (30) days after receipt of any Claim Notice (the "“Election Period")”) from a Party, the Indemnifying Party shall notify the party Party who sent the Claim Notice (A) whether the Indemnifying Party disputes its potential liability to indemnify the Indemnified Person under Sections 5.1, 7.2, 15.1 13.1 and/or 15.213.2, as the case may be, with respect to such third third-party claim and (B) whether the Indemnifying Party desires to defend the Indemnified Person against such third third-party claim; provided that, if the Indemnifying Party fails to so notify the Indemnified Person Party who sent the Claim Notice during the Election Period, the Indemnifying Party shall be deemed to have elected to dispute such liability and not to defend against such third third-party claim. The aforesaid election or deemed election by the Indemnifying Party not to assume the defense of the Indemnified Person with respect to such Indemnified Claim, however, shall be subject to the right of the Indemnifying Party to subsequently assume the defense of the Indemnified Person with respect to such Indemnified Claim at any time prior to settlement or final determination thereof.
(b) If the Indemnifying Party notifies the party Party who sent the Claim Notice within the Election Period that the Indemnifying Party (i) does not dispute its liability to indemnify the Indemnified Person under Sections 5.1, 7.2, 15.1 13.1 and/or 15.213.2, as the case may be (or reserves the right to dispute whether such claim is an Indemnified Claim under Sections 5.1be, 7.2, 15.1 and/or 15.2) and (ii) elects to assume the defense of such Indemnified Person with respect to such third third-party claim, then the Indemnifying Party shall have the right to defend, at its sole cost and expense, such third third-party claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 15.3(b13.3(b). If an Indemnifying Party elects pursuant to the foregoing to assume the defense of an Indemnified Person with respect to a third party claim which is subsequently determined not to be an Indemnified Claim, then, without limiting any action the Indemnifying Party may have on account of actual fraud, the Indemnifying Party shall not be entitled to recover from the other party or the Indemnified Person the costs and expenses incurred by the Indemnifying Party in providing such defense. The Indemnifying Party shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided that that, the Indemnifying Party shall not enter into any settlement agreement (or settle or compromise any such third third-party claim in a manner) which provides for or results in any payment by or liability of the Indemnified Person of or for any damages or other amount, any lien, charge or encumbrance on any property of the Indemnified Person, any finding of responsibility or liability on the part of the Indemnified Person or any sanction or restriction upon the conduct of any business by the Indemnified Person without the Indemnified Person's ’s express written consent, which consent shall not be unreasonably withheld. The Indemnified Person is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Person is actually entitled to indemnification hereunder), to file, during the Election Period, any motion, answer or other pleadings which the Indemnified Person shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party and not reasonably expected to be prejudicial to the Indemnifying Party. If requested by the Indemnifying Party, the Indemnified Person agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any such third third-party claim which the Indemnifying Party elects to contest, including the making of any related counterclaim or cross-complaint against any Person (other than a Buyer Indemnified Person, if the Indemnified Person is a Buyer Indemnified Person, or a Seller Indemnified Person, if the Indemnified Person is a Seller Indemnified Person). The Indemnified Person may participate in, but not control, any defense or settlement of any third third-party claim controlled by the Indemnifying Party pursuant to this Section 15.3(b13.3(b), and the Indemnified Person shall bear its own costs and expenses with respect to such participation. The prosecution of the defense of a third third-party claim with reasonable diligence shall include the taking of such action (including the posting of a bond, deposit or other security) as may be necessary to prevent any action to foreclose a lien against or attachment of the property of the Indemnified Person for payment of such third third-party claim.
(c) If the Indemnifying Party (i) fails to notify the party Party who sent the Claim Notice within the Election Period that the Indemnifying Party elects to defend the Indemnified Person pursuant to Section 15.3(b13.3(b) or (ii) elects to defend the Indemnified Person pursuant to Section 15.3(b) but fails to prosecute the defense of (or to settle) the third party claim with reasonable diligence, then the Indemnified Person shall have the right to defend, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Person is actually entitled to indemnification hereunder), the third party claim by all appropriate proceedings, which proceedings shall be promptly and vigorously prosecuted by the Indemnified Person to a final conclusion or settled. Unless and until such defense is assumed by the Indemnifying Party as permitted in Section 15.3(a), the Indemnified Person shall have full control of such defense and proceedings; provided, however, that the Indemnifying Party, without assuming the defense of such Indemnified Claim, may participate in, but not control, any defense or settlement controlled by the Indemnified Person pursuant to this Section 15.3(c), and the Indemnifying Party shall bear its own costs and expenses with respect to such participation. The Indemnified Person may not enter into any compromise or settlement of such third party claim, without the Indemnifying Party's express written consent, which shall not be unreasonably withheld.
(d) If an Indemnified Person is entitled to indemnity under Sections 5.1, 7.2, 15.1 and/or 15.2 for a claim or other matter which does not involve a third party claim, and if Buyer or Seller intends to seek indemnity on behalf of an Indemnified Person with respect thereto by or from an Indemnifying Party pursuant to Sections 5.1, 7.2, 15.1 and/or 15.2, then the party electing to seek indemnity on behalf of an Indemnified Person shall promptly transmit to the Indemnifying Party a written notice describing in reasonable detail the nature of such claim or other matter, the Indemnified Person's best estimate of the amount of damages attributable to such claim or other matter and the basis for the Indemnified Person's entitlement to indemnification under Sections 5.1, 7.2, 15.1 and/or 15.2, as the case may be. If the Indemnifying Party does not notify the party who sent such notice within 30 days from its receipt of such notice that the Indemnifying Party does not dispute such claim for indemnity, the Indemnifying Party shall be deemed to have disputed such claim.
(e) To the extent any claim, action, suit or proceeding includes one or more Indemnified Claims with respect to an Indemnified Person and one or more third party claims which are not Indemnified Claims with respect to such Indemnified Person, any such non-Indemnified Claim insofar as it is with respect to such Indemnified Person shall not be covered by the indemnity in Sections 5.1, 7.2, 15.1 and 15.2, the Indemnifying Party shall not be obligated to undertake, conduct and control the defense or settlement of such non-Indemnified Claim insofar as it is with respect to such Indemnified Person, and such Indemnified Person shall be responsible for its own defense and settlement of such non-Indemnified Claim. The seeking by a party of indemnity hereunder on behalf of any Indemnified Person with respect to any third party claim or other claim or matter shall not prevent such party from then or thereafter also seeking indemnity hereunder on behalf of any other Indemnified Person with respect to such third party claim or other claim or matter and shall not prevent the other party from seeking indemnity hereunder on behalf of any Indemnified Person with respect to the same third party claim or other claim or matter.to
Appears in 1 contract
Indemnification and Defense Procedures. A Person which is entitled to be indemnified under Section Sections 5.1, 7.27.11(b), 15.1 7.12, 12.2 or 15.2 12.3 is herein referred to as an "“Indemnified Person" ” and the party Party which is obligated to indemnify an Indemnified Person under Section Sections 5.1, 7.27.11(b), 15.1 7.12, 12.2 or 15.2 12.3 is herein referred to as the "“Indemnifying Party" ” with respect to the matter for which it is obligated to indemnify such Indemnified Person. All claims for indemnification under Sections 5.1, 7.27.11(b), 15.1 7.12, 12.2 and 15.2 12.3 shall be asserted and resolved as follows:
(a) If a third third-party claim for which an Indemnified Person is entitled to indemnity under Sections 5.1, 7.27.11(b), 15.1 7.12, 12.2 and/or 15.2 12.3 (an "“Indemnified Claim"”) is made against an Indemnified Person, and if Buyer or Seller intends Sellers intend to seek indemnity with respect thereto by or from an Indemnifying Party pursuant to Sections 5.1, 7.27.11(b), 15.1 7.12, 12.2 and/or 15.212.3, then the party Party electing to seek indemnity on behalf of such Indemnified Person shall promptly transmit to the Indemnifying Party a written notice ("“Claim Notice"”) (i) notifying such Indemnifying Party of such Indemnified Claim and request requesting indemnity on behalf of such Indemnified Person with respect to such Indemnified Claim under Sections 5.1, 7.27.11(b), 15.1 7.12, 12.2 and/or 15.212.3, as the case may be, (ii) setting forth the full name, address for all notices and the authorized representatives of such Indemnified Person with respect to such Indemnified Claim, and (iii) describing in reasonable detail the nature of the Indemnified Claim, including a copy of all papers served with respect to such Indemnified Claim (if any) and the basis of such request for indemnification under Sections 5.1, 7.27.11(b), 15.1 7.12, 12.2 and/or 15.212.3, as the case may be. Failure to provide such Claim Notice promptly shall not affect the right of the Indemnified Person to indemnification hereunder except to the extent the Indemnifying Party is materially prejudiced thereby; provided that, the Indemnifying Party shall not be obligated to defend, indemnify or otherwise hold harmless an Indemnified Person with respect to a third third-party claim until a Claim Notice meeting the foregoing requirements is furnished to the Indemnifying Party by the party Party seeking indemnity hereunder. Within 30 thirty (30) days after receipt of any Claim Notice (the "“Election Period")”) from a Party, the Indemnifying Party shall notify the party Party who sent the Claim Notice (A) whether the Indemnifying Party disputes its potential liability to indemnify the Indemnified Person under Sections 5.1, 7.27.11(b), 15.1 7.12, 12.2 and/or 15.212.3, as the case may be, with respect to such third third-party claim and (B) whether the Indemnifying Party desires to defend the Indemnified Person against such third third-party claim; provided that, if the Indemnifying Party fails to so notify the Indemnified Person Party who sent the Claim Notice during the Election Period, the Indemnifying Party shall be deemed to have elected to dispute such liability and not to defend against such third third-party claim. The aforesaid election or deemed election by the Indemnifying Party not to assume the defense of the Indemnified Person with respect to such Indemnified Claim, however, shall be subject to the right of the Indemnifying Party to subsequently assume the defense of the Indemnified Person with respect to such Indemnified Claim at any time prior to settlement or final determination thereof.
(b) If the Indemnifying Party notifies the party Party who sent the Claim Notice within the Election Period that the Indemnifying Party (i) does not dispute its liability to indemnify the Indemnified Person under Sections 5.1, 7.27.11(b), 15.1 7.12, 12.2 and/or 15.212.3, as the case may be be, (or reserves ii) will indemnify the right Indemnified Party therefrom (subject to dispute whether such claim is an Indemnified Claim under Sections 5.1, 7.2, 15.1 and/or 15.2the provisions and limitations of Article XI and this Article XII) and (iiiii) elects to assume the defense of such Indemnified Person with respect to such third third-party claim, then then, subject to satisfaction of the Litigation Condition as set forth below, the Indemnifying Party shall have the right to defend, at its sole cost and expense, such third third-party claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 15.3(b12.4(b). If an Indemnifying Party elects pursuant to Without limiting the foregoing to assume the defense of an Indemnified Person with respect to a third party claim which is subsequently determined not to be an Indemnified Claim, then, without limiting any action other requirements set forth herein for the Indemnifying Party may to have on account of actual fraudthe right to defend such third-party claim, the Indemnifying Party shall have the right to defend such third-party claim only if such third-party claim does not be entitled to recover from involve criminal liability and seeks only money damages and not equitable relief (the other party or “Litigation Condition”). To the Indemnified Person the costs and expenses incurred by extent that the Indemnifying Party in providing has the right to defend such defense. The third-party claim, the Indemnifying Party shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided that that, the Indemnifying Party shall not enter into any settlement agreement (or settle or compromise any such third third-party claim in a manner) without the consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, further, that no such consent of the Indemnified Party shall be required with respect to any such settlement agreement (or settling or comprising of any such third-party claim in a manner) which provides does not provide for or results result in any payment by or liability of the Indemnified Person of or for any damages or other amount, any lien, charge or encumbrance on any property of the Indemnified Person, any finding of responsibility or liability on the part of the Indemnified Person or Person, any sanction or restriction upon the conduct of any business by the Indemnified Person without or any equitable remedies against the Indemnified Person's express written consent, which consent shall not be unreasonably withheld. The Indemnified Person is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Person is actually entitled to indemnification hereunder), to file, during the Election Period, any motion, answer or other pleadings which the Indemnified Person shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party and not reasonably expected to be prejudicial to the Indemnifying Party. If requested by the Indemnifying Party, the Indemnified Person agrees, at the sole cost and expense of the Indemnifying Party, to use reasonable efforts to cooperate with the Indemnifying Party and its counsel in contesting any such third third-party claim which the Indemnifying Party elects to contest, including the making of any related counterclaim or cross-complaint against any Person (other than a Buyer Indemnified Person, if the Indemnified Person is a Buyer Indemnified Person, or a Seller Indemnified Person, if the Indemnified Person is a Seller Indemnified Person). The Indemnified Person may participate in, but not control, any defense or settlement of any third third-party claim controlled by the Indemnifying Party pursuant to this Section 15.3(b), and the Indemnified Person shall bear its own costs and expenses with respect to such participation. The prosecution of the defense of a third party claim with reasonable diligence shall include the taking of such action (including the posting of a bond, deposit or other security) as may be necessary to prevent any action to foreclose a lien against or attachment of the property of the Indemnified Person for payment of such third party claim.
(c) If the Indemnifying Party (i) fails to notify the party who sent the Claim Notice within the Election Period that the Indemnifying Party elects to defend the Indemnified Person pursuant to Section 15.3(b) or (ii) elects to defend the Indemnified Person pursuant to Section 15.3(b) but fails to prosecute the defense of (or to settle) the third party claim with reasonable diligence, then the Indemnified Person shall have the right to defend, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Person is actually entitled to indemnification hereunder), the third party claim by all appropriate proceedings, which proceedings shall be promptly and vigorously prosecuted by the Indemnified Person to a final conclusion or settled. Unless and until such defense is assumed by the Indemnifying Party as permitted in Section 15.3(a), the Indemnified Person shall have full control of such defense and proceedings; provided, however, that the Indemnifying Party, without assuming the defense of such Indemnified Claim, may participate in, but not control, any defense or settlement controlled by the Indemnified Person pursuant to this Section 15.3(c), and the Indemnifying Party shall bear its own costs and expenses with respect to such participation. The Indemnified Person may not enter into any compromise or settlement of such third party claim, without the Indemnifying Party's express written consent, which shall not be unreasonably withheld.
(d) If an Indemnified Person is entitled to indemnity under Sections 5.1, 7.2, 15.1 and/or 15.2 for a claim or other matter which does not involve a third party claim, and if Buyer or Seller intends to seek indemnity on behalf of an Indemnified Person with respect thereto by or from an Indemnifying Party pursuant to Sections 5.1, 7.2, 15.1 and/or 15.2, then the party electing to seek indemnity on behalf of an Indemnified Person shall promptly transmit to the Indemnifying Party a written notice describing in reasonable detail the nature of such claim or other matter, the Indemnified Person's best estimate of the amount of damages attributable to such claim or other matter and the basis for the Indemnified Person's entitlement to indemnification under Sections 5.1, 7.2, 15.1 and/or 15.2, as the case may be. If the Indemnifying Party does not notify the party who sent such notice within 30 days from its receipt of such notice that the Indemnifying Party does not dispute such claim for indemnity, the Indemnifying Party shall be deemed to have disputed such claim.
(e) To the extent any claim, action, suit or proceeding includes one or more Indemnified Claims with respect to an Indemnified Person and one or more third party claims which are not Indemnified Claims with respect to such Indemnified Person, any such non-Indemnified Claim insofar as it is with respect to such Indemnified Person shall not be covered by the indemnity in Sections 5.1, 7.2, 15.1 and 15.2, the Indemnifying Party shall not be obligated to undertake, conduct and control the defense or settlement of such non-Indemnified Claim insofar as it is with respect to such Indemnified Person, and such Indemnified Person shall be responsible for its own defense and settlement of such non-Indemnified Claim. The seeking by a party of indemnity hereunder on behalf of any Indemnified Person with respect to any third party claim or other claim or matter shall not prevent such party from then or thereafter also seeking indemnity hereunder on behalf of any other Indemnified Person with respect to such third party claim or other claim or matter and shall not prevent the other party from seeking indemnity hereunder on behalf of any Indemnified Person with respect to the same third party claim or other claim or matter.this
Appears in 1 contract
Indemnification and Defense Procedures. A Person which is entitled to be indemnified under Section 5.1, 7.2, 15.1 13.1 or 15.2 13.2 is herein referred to as an "“Indemnified Person" ” and the party which is obligated to indemnify an Indemnified Person under Section 5.1, 7.2, 15.1 13.1 or 15.2 13.2 is herein referred to as the "“Indemnifying Party" ” with respect to the matter for which it is obligated to indemnify such Indemnified Person. All claims for indemnification under Sections 5.1, 7.2, 15.1 13.1 and 15.2 13.2 shall be asserted and resolved as follows:
(a) If a third party claim for which an Indemnified Person is entitled to indemnity under Sections 5.1, 7.2, 15.1 13.1 and/or 15.2 13.2 (an "“Indemnified Claim"”) is made against an Indemnified Person, and if Buyer or Seller intends to seek indemnity with respect thereto by or from an Indemnifying Party pursuant to Sections 5.1, 7.2, 15.1 13.1 and/or 15.213.2, then the party electing to seek indemnity on behalf of such Indemnified Person shall promptly transmit to the Indemnifying Party a written notice ("“Claim Notice"”) (i) notifying such Indemnifying Party of such Indemnified Claim and request requesting indemnity on behalf of such Indemnified Person with respect to such Indemnified Claim under Sections 5.1, 7.2, 15.1 13.1 and/or 15.213.2, as the case may be, (ii) setting forth the full name, address for all notices and the authorized representatives of such Indemnified Person with respect to such Indemnified Claim, and (iii) describing in reasonable detail the nature of the Indemnified Claim, including a copy of all papers served with respect to such Indemnified Claim (if any) and the basis of such request for indemnification under Sections 5.1, 7.2, 15.1 13.1 and/or 15.213.2, as the case may be. Failure to provide such Claim Notice promptly shall not affect the right of the Indemnified Person to indemnification hereunder except to the extent the Indemnifying Party is prejudiced thereby; provided that, the Indemnifying Party shall not be obligated to defend, indemnify or otherwise hold harmless an Indemnified Person with respect to a third party claim until a Claim Notice meeting the foregoing requirements is furnished to the Indemnifying Party by the party seeking indemnity hereunder. Within 30 days after receipt of any Claim Notice (the "“Election Period"”), the Indemnifying Party shall notify the party who sent the Claim Notice (A) whether the Indemnifying Party disputes its potential liability to indemnify the Indemnified Person under Sections 5.1, 7.2, 15.1 13.1 and/or 15.213.2, as the case may be, with respect to such third party claim and (B) whether the Indemnifying Party desires to defend the Indemnified Person against such third party claim; provided that, if the Indemnifying Party fails to so notify the Indemnified Person during the Election Period, the Indemnifying Party shall be deemed to have elected to dispute such liability and not to defend against such third party claim. The aforesaid election or deemed election by the Indemnifying Party not to assume the defense of the Indemnified Person with respect to such Indemnified Claim, however, shall be subject to the right of the Indemnifying Party to subsequently assume the defense of the Indemnified Person with respect to such Indemnified Claim at any time prior to settlement or final determination thereof.
(b) If the Indemnifying Party notifies the party who sent the Claim Notice within the Election Period that the Indemnifying Party (i) does not dispute its liability to indemnify the Indemnified Person under Sections 5.1, 7.2, 15.1 13.1 and/or 15.213.2, as the case may be (or reserves the right to dispute whether such claim is an Indemnified Claim under Sections 5.1, 7.2, 15.1 13.1 and/or 15.213.2) and (ii) elects to assume the defense of such Indemnified Person with respect to such third party claim, then the Indemnifying Party shall have the right to defend, at its sole cost and expense, such third party claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 15.3(b13.3(b). If an Indemnifying Party elects pursuant to the foregoing to assume the defense of an Indemnified Person with respect to a third party claim which is subsequently determined not to be an Indemnified Claim, then, without limiting any action the Indemnifying Party may have on account of actual fraud, the Indemnifying Party shall not be entitled to recover from the other party or the Indemnified Person the costs and expenses incurred by the Indemnifying Party in providing such defense. The Indemnifying Party shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided that the Indemnifying Party shall not enter into any settlement agreement (or settle or compromise any such third party claim in a manner) which provides for or results in any payment by or liability of the Indemnified Person of or for any damages or other amount, any lien, charge or encumbrance on any property of the Indemnified Person, any finding of responsibility or liability on the part of the Indemnified Person or any sanction or restriction upon the conduct of any business by the Indemnified Person without the Indemnified Person's ’s express written consent, which consent shall not be unreasonably withheld. The Indemnified Person is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Person is actually entitled to indemnification hereunder), to file, during the Election Period, any motion, answer or other pleadings which the Indemnified Person shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party and not reasonably expected to be prejudicial to the Indemnifying Party. If requested by the Indemnifying Party, the Indemnified Person agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any such third party claim which the Indemnifying Party elects to contest, including the making of any related counterclaim or cross-complaint against any Person (other than a Buyer Indemnified Person, if the Indemnified Person is a Buyer Indemnified Person, or a Seller Indemnified Person, if the Indemnified Person is a Seller Indemnified Person). The Indemnified Person may participate in, but not control, any defense or settlement of any third party claim controlled by the Indemnifying Party pursuant to this Section 15.3(b13.3(b), and the Indemnified Person shall bear its own costs and expenses with respect to such participation. The prosecution of the defense of a third party claim with reasonable diligence shall include the taking of such action (including the posting of a bond, deposit or other security) as may be necessary to prevent any action to foreclose a lien against or attachment of the property of the Indemnified Person for payment of such third party claim.
(c) If the Indemnifying Party (i) fails to notify the party who sent the Claim Notice within the Election Period that the Indemnifying Party elects to defend the Indemnified Person pursuant to Section 15.3(b13.3(b) or (ii) elects to defend the Indemnified Person pursuant to Section 15.3(b13.3(b) but fails to prosecute the defense of (or to settle) the third party claim with reasonable diligence, then the Indemnified Person shall have the right to defend, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Person is actually entitled to indemnification hereunder), the third party claim by all appropriate proceedings, which proceedings shall be promptly and vigorously prosecuted by the Indemnified Person to a final conclusion or settled. Unless and until such defense is assumed by the Indemnifying Party as permitted in Section 15.3(a), the The Indemnified Person shall have full control of such defense and proceedings; provided, however, that the Indemnified Person may not enter into any compromise or settlement of such third party claim, without the Indemnifying Party’s express written consent, without assuming the defense of such Indemnified Claim, which shall not be unreasonably withheld. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Person pursuant to this Section 15.3(c13.3(c), and the Indemnifying Party shall bear its own costs and expenses with respect to such participation. The Indemnified Person may .
(d) If the Indemnifying Party elects not enter into any compromise or settlement to assume the defense of such a third party claim, without or elects to assume the Indemnifying Party's express written consentdefense of a third party claim, which but reserves the right to dispute whether such claim is an Indemnified Claim under Sections 5.1, 13.1 and/or 13.2, as the case may be, the determination of whether the Indemnified Person is entitled to indemnification hereunder shall not be unreasonably withheldresolved pursuant to arbitration as provided in Section 15.10.
(de) If an Indemnified Person is entitled to indemnity under Sections 5.1, 7.2, 15.1 13.1 and/or 15.2 13.2 for a claim or other matter which does not involve a third party claim, and if Buyer or Seller intends to seek indemnity on behalf of an Indemnified Person with respect thereto by or from an Indemnifying Party pursuant to Sections 5.1, 7.2, 15.1 13.1 and/or 15.213.2, then the party electing to seek indemnity on behalf of an Indemnified Person shall promptly transmit to the Indemnifying Party a written notice describing in reasonable detail the nature of such claim or other matter, the Indemnified Person's ’s best estimate of the amount of damages attributable to such claim or other matter and the basis for the Indemnified Person's ’s entitlement to indemnification under Sections 5.1, 7.2, 15.1 13.1 and/or 15.213.2, as the case may be. If the Indemnifying Party does not notify the party who sent such notice within 30 days from its receipt of such notice that the Indemnifying Party does not dispute such claim for indemnity, the Indemnifying Party shall be deemed to have disputed such claim. If the Indemnifying Party has disputed such claim, such dispute shall be resolved pursuant to arbitration as provided in Section 15.10.
(ef) To the extent any claim, action, suit or proceeding includes one or more Indemnified Claims with respect to an Indemnified Person and one or more third party claims which are not Indemnified Claims with respect to such Indemnified Person, any such non-Indemnified Claim insofar as it is with respect to such Indemnified Person shall not be covered by the indemnity in Sections 5.1, 7.2, 15.1 13.1 and 15.213.2, the Indemnifying Party shall not be obligated to undertake, conduct and control the defense or settlement of such non-Indemnified Claim insofar as it is with respect to such Indemnified Person, and such Indemnified Person shall be responsible for its own defense and settlement of such non-Indemnified Claim. The seeking by a party of indemnity hereunder on behalf of any Indemnified Person with respect to any third party claim or other claim or matter shall not prevent such party from then or thereafter also seeking indemnity hereunder on behalf of any other Indemnified Person with respect to such third party claim or other claim or matter and shall not prevent the other party from seeking indemnity hereunder on behalf of any Indemnified Person with respect to the same third party claim or other claim or matter.
(g) The term “Indemnified Transfer Tax Claim” as used herein means a claim by or on behalf of any Governmental Authority in the State of Florida for any Tax or fee described in the first sentence of Section 15.4. Notwithstanding the provisions of Sections 13.3(b) and (c), with respect to any Indemnified Transfer Tax Claim, any Seller Indemnified Person may enter into any compromise or settlement of such Indemnified Transfer Tax Claim, in such Seller Indemnified Person’s sole discretion, without the Indemnifying Party’s prior consent, and no Seller Indemnified Person shall be required to make any related counterclaim or cross-complaint against any Person in connection with such Indemnified Transfer Tax Claim or otherwise cooperate with the Indemnifying Party or its counsel in contesting any such Indemnified Transfer Tax Claim.
Appears in 1 contract
Samples: Asset Purchase Agreement (BreitBurn Energy Partners L.P.)
Indemnification and Defense Procedures. A Person which is entitled to be indemnified under Section 5.1, 7.2, 15.1 or 15.2 is herein referred to as an "Indemnified PersonIndemnitee" and the party Party which is obligated to indemnify an Indemnified Person Indemnitee under Section 5.1, 7.2, 15.1 or 15.2 is herein referred to as the "Indemnifying PartyIndemnitor" with respect to the matter for which it is obligated to indemnify such Indemnified PersonIndemnitee. All claims for indemnification under Sections 5.1, 7.2, 15.1 and 15.2 shall be asserted and resolved as follows:
(a) If a third party claim Third Party Claim for which an Indemnified Person Indemnitee is entitled to indemnity under Sections 5.1, 7.2, 15.1 and/or 15.2 (an "Indemnified Claim") is made against an Indemnified PersonIndemnitee, and if Buyer Seller or Seller intends Buyers intend to seek indemnity with respect thereto by or from an Indemnifying Party Indemnitor pursuant to Sections 5.1, 7.2, 15.1 and/or 15.2, then the party Party electing to seek indemnity on behalf of such Indemnified Person Indemnitee shall promptly transmit to the Indemnifying Party Indemnitor a written notice ("Claim Notice") (i) notifying such Indemnifying Party Indemnitor of such Indemnified Claim and request indemnity on behalf of such Indemnified Person Indemnitee with respect to such Indemnified Claim under Sections 5.1, 7.2, 15.1 and/or 15.2, as the case may be, (ii) setting forth the full name, address for all notices and the authorized representatives Representatives of such Indemnified Person Indemnitee with respect to such Indemnified Claim, and (iii) describing in reasonable detail the nature of the Indemnified Claim, including a copy of all papers served with respect to such Indemnified Claim (if any) and the basis of such request for indemnification under Sections 5.1, 7.2, 15.1 and/or 15.2, as the case may be. Failure to provide such Claim Notice promptly shall not affect the right of the Indemnified Person Indemnitee to indemnification hereunder except to the extent the Indemnifying Party Indemnitor is prejudiced thereby; provided that, the Indemnifying Party Indemnitor shall not be obligated to defend, indemnify or otherwise hold harmless an Indemnified Person Indemnitee with respect to a third party claim Third Party Claim until a Claim Notice meeting the foregoing requirements is furnished to the Indemnifying Party Indemnitor by the party Party seeking indemnity hereunderhereunder and any Covered Liability resulting from such delay in defense, indemnification or holding harmless of such Indemnitee shall not be covered by the Indemnitor's indemnification obligations with respect to such Indemnified Claim or such Indemnitee. Within 30 days after receipt of any Claim Notice (the "Election Period"), the Indemnifying Party Indemnitor shall notify the party Party who sent the Claim Notice (A) whether the Indemnifying Party Indemnitor disputes its potential liability to indemnify the Indemnified Person Indemnitee under Sections 5.1, 7.2, 15.1 and/or 15.2, as the case may be, with respect to such third party claim Third Party Claim and (B) whether the Indemnifying Party Indemnitor desires to defend the Indemnified Person Indemnitee against such third party claimThird Party Claim; provided that, if the Indemnifying Party Indemnitor fails to so notify the Indemnified Person Indemnitee during the Election Period, the Indemnifying Party Indemnitor shall be deemed to have elected to dispute such liability and not to defend against such third party claimThird Party Claim. The aforesaid election or deemed election by the Indemnifying Party Indemnitor not to assume the defense of the Indemnified Person Indemnitee with respect to such Indemnified Claim, however, shall be subject to the right of the Indemnifying Party Indemnitor to subsequently assume the defense of the Indemnified Person Indemnitee with respect to such Indemnified Claim at any time prior to settlement or final determination thereof.
(b) If the Indemnifying Party Indemnitor notifies the party Party who sent the Claim Notice within the Election Period that the Indemnifying Party Indemnitor (i) does not dispute its liability to indemnify the Indemnified Person Indemnitee under Sections 5.1, 7.2, 15.1 and/or 15.2, as the case may be (or reserves the right to dispute whether such claim is an Indemnified Claim under Sections 5.1, 7.2, 15.1 and/or 15.2) and (ii) elects to assume the defense of such Indemnified Person Indemnitee with respect to such third party claimThird Party Claim, then the Indemnifying Party Indemnitor shall have the right to defend, at its sole cost and expense, and using counsel reasonably acceptable to the Indemnitee, such third party claim Third Party Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party Indemnitor to a final conclusion or settled at the discretion of the Indemnifying Party Indemnitor in accordance with this Section 15.3(b). If an Indemnifying Party Indemnitor elects pursuant to the foregoing to assume the defense of an Indemnified Person Indemnitee with respect to a third party claim Third Party Claim which is subsequently determined not to be an Indemnified Claim, then, without limiting any action the Indemnifying Party Indemnitor may have on account of actual fraud, the Indemnifying Party Indemnitor shall not be entitled to recover from the other party Party or the Indemnified Person Indemnitee the costs and expenses incurred by the Indemnifying Party Indemnitor in providing such defense. The Indemnifying Party Indemnitor shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided that provided, however, the Indemnifying Party Indemnitor shall not enter into any settlement agreement (or settle or compromise any such third party claim Third Party Claim in a manner) which provides for or results in any payment by or liability of the Indemnified Person Indemnitee of or for any damages or other amount, any lien, charge or encumbrance Lien on any property of the Indemnified PersonIndemnitee, any finding of responsibility or liability on the part of the Indemnified Person Indemnitee or any sanction or restriction upon the conduct of any business by the Indemnified Person Indemnitee or any obligation or action on the part of the Indemnitee without the Indemnified PersonIndemnitee's express written consent, which consent shall not be unreasonably withheld. .
(c) The Indemnified Person Indemnitee is hereby authorized, at the sole cost and expense of the Indemnifying Party Indemnitor (but only if the Indemnified Person Indemnitee is actually entitled to indemnification hereunder), to file, during the Election Period, any motion, answer or other pleadings which the Indemnified Person Indemnitee shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party Indemnitor and not reasonably expected to be prejudicial to the Indemnifying PartyIndemnitor. If requested by the Indemnifying PartyIndemnitor, the Indemnified Person Indemnitee agrees, at the sole cost and expense of the Indemnifying PartyIndemnitor, to cooperate with the Indemnifying Party Indemnitor and its counsel in contesting any such third party claim Third Party Claim which the Indemnifying Party Indemnitor elects to contest, including the making of any related counterclaim or cross-complaint against any Person (other than a Buyer Indemnified PersonSeller Indemnitee, if the Indemnified Person Indemnitee is a Seller Indemnitee, or a Buyer Indemnitee, if the Indemnitee is a Buyer Indemnified Person, or a Seller Indemnified Person, if the Indemnified Person is a Seller Indemnified PersonIndemnitee). The Indemnified Person Indemnitee may participate in, but not control, any defense or settlement of any third party claim Third Party Claim controlled by the Indemnifying Party Indemnitor pursuant to this Section 15.3(b15.3(c), and the Indemnified Person Indemnitee shall bear its own costs and expenses with respect to such participation. The prosecution of the defense of a third party claim Third Party Claim with reasonable diligence shall include the taking of such action (including the posting of a bond, deposit or other security) as may be necessary to prevent any action to foreclose a lien Lien against or attachment of the property of the Indemnified Person Indemnitee for payment of such third party claimThird Party Claim.
(cd) If the Indemnifying Party Indemnitor (i) fails to notify the party Party who sent the Claim Notice within the Election Period that the Indemnifying Party Indemnitor elects to defend the Indemnified Person Indemnitee pursuant to Section 15.3(b) or (ii) elects to defend the Indemnified Person Indemnitee pursuant to Section 15.3(b) but fails to prosecute the defense of (or to settle) the third party claim Third Party Claim with reasonable diligence, then the Indemnified Person Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party Indemnitor (but only if the Indemnified Person Indemnitee is actually entitled to indemnification hereunder), the third party claim Third Party Claim by all appropriate proceedings, which proceedings shall be promptly and vigorously prosecuted by the Indemnified Person Indemnitee to a final conclusion or settled. Unless and until such defense is assumed by the Indemnifying Party Indemnitor as permitted in Section 15.3(a), the Indemnified Person Indemnitee shall have full control of such defense and proceedings; provided, however, that the Indemnifying PartyIndemnitor, without assuming the defense of such Indemnified Claim, may participate in, but not control, any defense or settlement controlled by the Indemnified Person Indemnitee pursuant to this Section 15.3(c15.3(d), and the Indemnifying Party Indemnitor shall bear its own costs and expenses with respect to such participation. The Indemnified Person Indemnitee may not enter into any compromise or settlement of such third party claimThird Party Claim, without the Indemnifying PartyIndemnitor's express written consent, which shall not be unreasonably withheld.
(de) If an Indemnified Person Indemnitee is entitled to indemnity under Sections 5.1, 7.2, 15.1 and/or 15.2 for a claim or other matter which does not involve a third party claimThird Party Claim, and if Seller or Buyer or Seller intends to seek indemnity on behalf of an Indemnified Person Indemnitee with respect thereto by or from an Indemnifying Party Indemnitor pursuant to Sections 5.1, 7.2, 15.1 and/or 15.2, then the party Party electing to seek indemnity on behalf of an Indemnified Person Indemnitee shall promptly transmit to the Indemnifying Party Indemnitor a written notice describing in reasonable detail the nature of such claim or other matter, the Indemnified PersonIndemnitee's best estimate of the amount of damages attributable to such claim or other matter and the basis for the Indemnified PersonIndemnitee's entitlement to indemnification under Sections 5.1, 7.2, 15.1 and/or 15.2, as the case may be. If the Indemnifying Party Indemnitor does not notify the party Party who sent such notice within 30 days from its receipt of such notice that the Indemnifying Party Indemnitor does not dispute such claim for indemnity, the Indemnifying Party Indemnitor shall be deemed to have disputed such claim.
(ef) To the extent any claim, action, suit or proceeding includes one or more Indemnified Claims with respect to an Indemnified Person Indemnitee and one or more third party claims Third Party Claims which are not Indemnified Claims with respect to such Indemnified PersonIndemnitee, any such non-Indemnified Claim insofar as it is with respect to such Indemnified Person Indemnitee shall not be covered by the indemnity in Sections 5.1, 7.2, 15.1 and 15.2, the Indemnifying Party Indemnitor shall not be obligated to undertake, conduct and control the defense or settlement of such non-Indemnified Claim insofar as it is with respect to such Indemnified PersonIndemnitee, and such Indemnified Person Indemnitee shall be responsible for its own defense and settlement of such non-Indemnified Claim. The seeking by a party Party of indemnity hereunder on behalf of any Indemnified Person Indemnitee with respect to any third party claim Third Party Claim or other claim or matter shall not prevent such party Party from then or thereafter also seeking indemnity hereunder on behalf of any other Indemnified Person Indemnitee with respect to such third party claim Third Party Claim or other claim or matter and shall not prevent the other party Party from seeking indemnity hereunder on behalf of any Indemnified Person Indemnitee with respect to the same third party claim Third Party Claim or other claim or matter.
Appears in 1 contract
Samples: Refinery Purchase and Sale Agreement (Delek US Holdings, Inc.)
Indemnification and Defense Procedures. A Person which is entitled to be indemnified under Section 5.1, 7.2, 15.1 13.1 or 15.2 13.2 is herein referred to as an "“Indemnified Person" ” and the party Party which is obligated to indemnify an Indemnified Person under Section 5.1, 7.2, 15.1 13.1 or 15.2 13.2 is herein referred to as the "“Indemnifying Party" ” with respect to the matter for which it is obligated to indemnify such Indemnified Person. All claims for indemnification under Sections 5.1, 7.2, 15.1 13.1 and 15.2 13.2 shall be asserted and resolved as follows:: - 30 -
(a) If a third third-party claim for which an Indemnified Person is entitled to indemnity under Sections 5.1, 7.2, 15.1 13.1 and/or 15.2 13.2 (an "“Indemnified Claim"”) is made against an Indemnified Person, and if Buyer or Seller intends to seek indemnity with respect thereto by or from an Indemnifying Party pursuant to Sections 5.1, 7.2, 15.1 13.1 and/or 15.213.2, then the party Party electing to seek indemnity on behalf of such Indemnified Person shall promptly transmit to the Indemnifying Party a written notice ("“Claim Notice"”) (i) notifying such Indemnifying Party of such Indemnified Claim and request requesting indemnity on behalf of such Indemnified Person with respect to such Indemnified Claim under Sections 5.1, 7.2, 15.1 13.1 and/or 15.213.2, as the case may be, (ii) setting forth the full name, address for all notices and the authorized representatives of such Indemnified Person with respect to such Indemnified Claim, and (iii) describing in reasonable detail the nature of the Indemnified Claim, including a copy of all papers served with respect to such Indemnified Claim (if any) and the basis of such request for indemnification under Sections 5.1, 7.2, 15.1 13.1 and/or 15.213.2, as the case may be. Failure to provide such Claim Notice promptly shall not affect the right of the Indemnified Person to indemnification hereunder except to the extent the Indemnifying Party is prejudiced thereby; provided that, the Indemnifying Party shall not be obligated to defend, indemnify or otherwise hold harmless an Indemnified Person with respect to a third third-party claim until a Claim Notice meeting the foregoing requirements is furnished to the Indemnifying Party by the party Party seeking indemnity hereunder. Within 30 thirty (30) days after receipt of any Claim Notice (the "“Election Period")”) from a Party, the Indemnifying Party shall notify the party Party who sent the Claim Notice (A) whether the Indemnifying Party disputes its potential liability to indemnify the Indemnified Person under Sections 5.1, 7.2, 15.1 13.1 and/or 15.213.2, as the case may be, with respect to such third third-party claim and (B) whether the Indemnifying Party desires to defend the Indemnified Person against such third third-party claim; provided that, if the Indemnifying Party fails to so notify the Indemnified Person Party who sent the Claim Notice during the Election Period, the Indemnifying Party shall be deemed to have elected to dispute such liability and not to defend against such third third-party claim. The aforesaid election or deemed election by the Indemnifying Party not to assume the defense of the Indemnified Person with respect to such Indemnified Claim, however, shall be subject to the right of the Indemnifying Party to subsequently assume the defense of the Indemnified Person with respect to such Indemnified Claim at any time prior to settlement or final determination thereof.
(b) If the Indemnifying Party notifies the party Party who sent the Claim Notice within the Election Period that the Indemnifying Party (i) does not dispute its liability to indemnify the Indemnified Person under Sections 5.1, 7.2, 15.1 13.1 and/or 15.213.2, as the case may be (or reserves the right to dispute whether such claim is an Indemnified Claim under Sections 5.1be, 7.2, 15.1 and/or 15.2) and (ii) elects to assume the defense of such Indemnified Person with respect to such third third-party claim, then the Indemnifying Party shall have the right to defend, at its sole cost and expense, such third third-party claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 15.3(b13.3(b). If an Indemnifying Party elects pursuant to the foregoing to assume the defense of an Indemnified Person with respect to a third party claim which is subsequently determined not to be an Indemnified Claim, then, without limiting any action the Indemnifying Party may have on account of actual fraud, the Indemnifying Party shall not be entitled to recover from the other party or the Indemnified Person the costs and expenses incurred by the Indemnifying Party in providing such defense. The Indemnifying Party shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided that that, the Indemnifying Party shall not enter into any settlement agreement (or settle or compromise any such third third-party claim in a manner) which provides for or results in any payment by or liability of the Indemnified Person of or for any damages or other amount, any lien, charge or encumbrance on any property of the Indemnified Person, any finding of responsibility or liability on the part of the Indemnified Person or any sanction or restriction upon the conduct of any business by the Indemnified Person without the Indemnified Person's ’s express written consent, which consent shall not be unreasonably withheld. The Indemnified Person is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Person is actually entitled to indemnification hereunder), to file, during the Election Period, any motion, answer or other pleadings which the Indemnified Person shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party and not reasonably expected to be prejudicial to the Indemnifying Party. If requested by the Indemnifying Party, the Indemnified Person agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any such third third-party claim which the Indemnifying Party elects to contest, including the making of any related counterclaim or cross-complaint against any Person (other than a Buyer Indemnified Person, if the Indemnified Person is a Buyer Indemnified Person, or a Seller Indemnified Person, if the Indemnified Person is a Seller Indemnified Person). The Indemnified Person may participate in, but not control, any defense or settlement of any third third-party claim controlled by the Indemnifying Party pursuant to this Section 15.3(b13.3(b), and the Indemnified Person shall bear its own costs and expenses with respect to such participation. The prosecution of the defense of a third third-party claim with reasonable diligence shall include the taking of such action (including the posting of a bond, deposit or other security) as may be necessary to prevent any action to foreclose a lien against or attachment of the property of the Indemnified Person for payment of such third third-party claim.
(c) If the Indemnifying Party (i) fails to notify the party Party who sent the Claim Notice within the Election Period that the Indemnifying Party elects to defend the Indemnified Person pursuant to Section 15.3(b13.3(b) or (ii) elects to defend the Indemnified Person pursuant to Section 15.3(b13.3(b) but fails to prosecute the defense of (or to settle) the third third-party claim with reasonable diligence, then the Indemnified Person shall have the right to defend, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Person is actually entitled to indemnification hereunder), the third third-party claim by all appropriate proceedings, which proceedings shall be promptly and vigorously prosecuted by the Indemnified Person to a final conclusion or settled. Unless and until such defense is assumed by the Indemnifying Party as permitted in Section 15.3(a), the The Indemnified Person shall have full control of such defense and proceedings; provided, however, that the Indemnified Person may not enter into any compromise or settlement of such third-party claim, without the Indemnifying Party’s express written consent, without assuming the defense of such Indemnified Claim, which shall not be unreasonably withheld or delayed. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Person pursuant to this Section 15.3(c13.3(c), and the Indemnifying Party shall bear its own costs and expenses with respect to such participation. The Indemnified Person may not enter into any compromise or settlement of such third party claim, without the Indemnifying Party's express written consent, which shall not be unreasonably withheld.
(d) If an Indemnified Person is entitled to indemnity under Sections 5.1, 7.2, 15.1 13.1 and/or 15.2 13.2 for a claim or other matter which does not involve a third third-party claim, and if Buyer or Seller intends to seek indemnity for itself or on behalf of an Indemnified Person with respect thereto by or from an Indemnifying Party pursuant to Sections 5.1, 7.2, 15.1 13.1 and/or 15.213.2, then the party Party electing to seek indemnity on behalf of itself or an Indemnified Person shall promptly transmit to the Indemnifying Party a written notice describing in reasonable detail the nature of such claim or other matter, the Indemnified Person's best ’s reasonable estimate of the amount of damages attributable to such claim or other matter and the basis for the Indemnified Person's ’s entitlement to indemnification under Sections 5.1, 7.2, 15.1 13.1 and/or 15.213.2, as the case may be. If the Indemnifying Party does not notify the party Party who sent such notice within 30 thirty (30) days from its receipt of such notice that the Indemnifying Party does not dispute such claim for indemnity, the Indemnifying Party shall be deemed to have disputed such claim.
(e) To the extent any claim, action, suit or proceeding includes one or more Indemnified Claims with respect to an Indemnified Person and one or more third party claims which are not Indemnified Claims with respect to such Indemnified Person, any such non-Indemnified Claim insofar as it is with respect to such Indemnified Person shall not be covered by the indemnity in Sections 5.1, 7.2, 15.1 and 15.2, the Indemnifying Party shall not be obligated to undertake, conduct and control the defense or settlement of such non-Indemnified Claim insofar as it is with respect to such Indemnified Person, and such Indemnified Person shall be responsible for its own defense and settlement of such non-Indemnified Claim. The seeking by a party of indemnity hereunder on behalf of any Indemnified Person with respect to any third party claim or other claim or matter shall not prevent such party from then or thereafter also seeking indemnity hereunder on behalf of any other Indemnified Person with respect to such third party claim or other claim or matter and shall not prevent the other party from seeking indemnity hereunder on behalf of any Indemnified Person with respect to the same third party claim or other claim or matter.
Appears in 1 contract
Indemnification and Defense Procedures. A Person which is entitled to be indemnified under Section 5.1, 7.2, 15.1 or 15.2 is herein referred to as an "Indemnified Person" and the party which is obligated to indemnify an Indemnified Person under Section 5.1, 7.2, 15.1 or 15.2 is herein referred to as the "Indemnifying Party" with respect to the matter for which it is obligated to indemnify such Indemnified Person. All claims Claims for indemnification under Sections 5.1, 7.2, 15.1 and 15.2 this Agreement shall be asserted and resolved as follows:
(a) If a third party claim for any Person who or which an Indemnified Person is entitled to indemnity seek indemnification under Sections 5.1, 7.2, 15.1 and/or 15.2 this Agreement (an "“Indemnified Claim"Party”) is made receives notice of the assertion or commencement of any claim asserted against an Indemnified PersonParty by a third Person (“Third Party Claim”) in respect of any matter that is subject to indemnification under this Agreement, and if Buyer or Seller intends the Indemnified Party shall promptly (i) notify the Party obligated to seek indemnity with respect thereto by or from an Indemnifying indemnify the Indemnified Party pursuant to Sections 5.1this Agreement, 7.2, 15.1 and/or 15.2, then (the party electing to seek indemnity on behalf “Indemnifying Party”) of such Indemnified Person shall promptly the Third Party Claim and (ii) transmit to the Indemnifying Party a written notice ("“Claim Notice") (i) notifying such Indemnifying Party of such Indemnified Claim and request indemnity on behalf of such Indemnified Person with respect to such Indemnified Claim under Sections 5.1, 7.2, 15.1 and/or 15.2, as the case may be, (ii) setting forth the full name, address for all notices and the authorized representatives of such Indemnified Person with respect to such Indemnified Claim, and (iii”) describing in reasonable detail the nature of the Indemnified Third Party Claim, including a copy of all papers served with respect to such Indemnified Claim claim (if any) ), the Indemnified Party’s best estimate of the amount of Covered Liabilities attributable to the Third Party Claim and the basis of such the Indemnified Party’s request for indemnification under Sections 5.1, 7.2, 15.1 and/or 15.2, as the case may bethis Agreement. Failure to timely provide such Claim Notice promptly shall not affect the right of the Indemnified Person to Party’s indemnification hereunder hereunder, except to the extent the Indemnifying Party is materially prejudiced thereby; provided that, the Indemnifying Party shall not be obligated to defend, indemnify by such delay or otherwise hold harmless an Indemnified Person with respect to a third party claim until a Claim Notice meeting the foregoing requirements is furnished to the Indemnifying Party by the party seeking indemnity hereunder. Within 30 days after receipt of any Claim Notice (the "Election Period"), the Indemnifying Party shall notify the party who sent the Claim Notice (A) whether the Indemnifying Party disputes its potential liability to indemnify the Indemnified Person under Sections 5.1, 7.2, 15.1 and/or 15.2, as the case may be, with respect to such third party claim and (B) whether the Indemnifying Party desires to defend the Indemnified Person against such third party claim; provided that, if the Indemnifying Party fails to so notify the Indemnified Person during the Election Period, the Indemnifying Party shall be deemed to have elected to dispute such liability and not to defend against such third party claim. The aforesaid election or deemed election by the Indemnifying Party not to assume the defense of the Indemnified Person with respect to such Indemnified Claim, however, shall be subject to the right of the Indemnifying Party to subsequently assume the defense of the Indemnified Person with respect to such Indemnified Claim at any time prior to settlement or final determination thereofomission.
(b) If the Indemnifying Party notifies the party who sent the Claim Notice within the Election Period that the Indemnifying Party (i) does not dispute its liability to indemnify the Indemnified Person under Sections 5.1, 7.2, 15.1 and/or 15.2, as the case may be (or reserves the right to dispute whether such claim is an Indemnified Claim under Sections 5.1, 7.2, 15.1 and/or 15.2) and (ii) elects to assume the defense of such Indemnified Person with respect to such third party claim, then the The Indemnifying Party shall have the right to defend, at its sole cost and expense, the Indemnified Party against such third party claim Third Party Claim with counsel selected by the Indemnifying Party (who shall be reasonably satisfactory to the Indemnified Party), by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled settlement at the discretion of the Indemnifying Party in accordance with this Section 15.3(b11.3(b). If an Indemnifying Party elects pursuant to the foregoing to assume the defense of an Indemnified Person with respect to a third party claim which is subsequently determined not to be an Indemnified Claim, then, without limiting any action the Indemnifying Party may have on account of actual fraud, the Indemnifying Party shall not be entitled to recover from the other party or the Indemnified Person the costs and expenses incurred by the Indemnifying Party in providing such defense. The Indemnifying Party shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided that the Indemnifying Party shall not enter into any settlement agreement (or settle or compromise any such third party claim in a manner) which provides for or results in any payment by or liability without the written consent of the Indemnified Party; provided further, that such consent shall not be required if (i) the settlement agreement contains a complete and unconditional general release by the third Person of or for any damages or other amountasserting the claim to all Indemnified Parties affected by the claim, any lien, charge or encumbrance on any property of (ii) the Indemnified Person, any finding of responsibility or liability on the part of the Indemnified Person or settlement agreement does not contain any sanction or restriction upon the conduct of any business by the Indemnified Person without Party or its Affiliates and (iii) the settlement agreement does not create a financial or other obligation on the part of the Indemnified Person's express written consent, which consent shall not be unreasonably withheld. The Indemnified Party or any other Person is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Person is actually entitled to indemnification hereunder), to file, during the Election Period, any motion, answer or other pleadings which the Indemnified Person shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party and not reasonably expected to be prejudicial to than the Indemnifying Party. If requested by the Indemnifying Party, the Indemnified Person Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any such third party claim which Third Party Claim that the Indemnifying Party elects to contest, including the making of any reasonably related counterclaim against the Person asserting the Third Party Claim or cross-any cross complaint against any Person (other than a Buyer Indemnified Person, if and making the books and records and personnel of the Indemnified Person is a Buyer Indemnified Person, or a Seller Indemnified Person, if the Indemnified Person is a Seller Indemnified Person)Party reasonably available during normal business hours. The Indemnified Person Party may participate in, but not control, any defense or settlement of any third party claim Third Party Claim controlled by the Indemnifying Party pursuant to this Section 15.3(b11.3(b), and the Indemnified Person Party shall bear its own costs and expenses with respect to such participation. The prosecution of the defense of a third party claim with reasonable diligence shall include the taking of such action (including the posting of a bond, deposit or other security) as may be necessary to prevent any action to foreclose a lien against or attachment of the property of the Indemnified Person for payment of such third party claim.
(c) If the Indemnifying Party does not admit (iin writing) fails its obligation to notify the party who sent the Claim Notice within the Election Period that the Indemnifying Party elects to defend indemnify the Indemnified Person Party pursuant to Section 15.3(b) or (ii) elects to defend the Indemnified Person pursuant to Section 15.3(b) but fails to prosecute the defense of (or to settle) the third party claim with reasonable diligence11.3(b), then the Indemnified Person Party shall have the right to defend, at the sole and be reimbursed for its reasonable cost and expense of the Indemnifying Party (but only if the Indemnified Person Party is actually entitled to indemnification hereunder) in regard to the Third Party Claim with counsel selected by the Indemnified Party (who shall be reasonably satisfactory to the Indemnifying Party), the third party claim by all appropriate proceedings, which proceedings shall be promptly and vigorously prosecuted diligently by the Indemnified Person to a final conclusion or settledParty. Unless and until In such defense is assumed by the Indemnifying Party as permitted in Section 15.3(a)circumstances, the Indemnified Person Party shall defend any such Third Party Claim in good faith and have full control of such defense and proceedings; provided, however, that the Indemnified Party may not enter into any compromise or settlement of such Third Party Claim if indemnification is to be sought hereunder, without the Indemnifying Party’s consent (which consent shall not be unreasonably withheld, without assuming the defense of such Indemnified Claim, conditioned or delayed). The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Person Party pursuant to this Section 15.3(c11.3(c), and the Indemnifying Party shall bear its own costs and expenses with respect to such participation. The Indemnified Person may not enter into any compromise or settlement of such third party claim, without the Indemnifying Party's express written consent, which shall not be unreasonably withheld.
(d) If Any claim by an Indemnified Person is entitled to indemnity Party for indemnification under Sections 5.1, 7.2, 15.1 and/or 15.2 for a claim or other matter which this Agreement that does not involve result from a third party claim, and if Buyer or Seller intends to seek indemnity on behalf of an Indemnified Person with respect thereto Third Party Claim (a “Direct Claim”) will be asserted by or from an Indemnifying Party pursuant to Sections 5.1, 7.2, 15.1 and/or 15.2, then the party electing to seek indemnity on behalf of an Indemnified Person shall promptly transmit to giving the Indemnifying Party a reasonably written notice describing thereof within the time period described in Section 9.1. Such notice by the Indemnified Party will describe the Direct Claim in reasonable detail detail, will include copies of all available material written evidence thereof and will indicate the nature estimated amount, if reasonably practicable, of such claim damages that has been or other matter, may be sustained by the Indemnified Person's best estimate Party. The Indemnifying Party will have a period of the amount of damages attributable fifteen (15) Business Days within which to respond in writing to such claim Direct Claim whether or other matter and not such period extends beyond the basis for the Indemnified Person's entitlement to indemnification under Sections 5.1, 7.2, 15.1 and/or 15.2, as the case may beapplicable survival period set forth in Section 9.1 therefor. If the Indemnifying Party does not notify the party who sent so respond within such notice within 30 days from its receipt of such notice that the Indemnifying Party does not dispute such claim for indemnityfifteen (15) Business Day period, the Indemnifying Party shall will be deemed to have disputed rejected such claim.
(e) To , in which event the extent any claim, action, suit or proceeding includes one or more Indemnified Claims with respect Party will be free to an Indemnified Person and one or more third party claims which are not Indemnified Claims with respect to pursue such Indemnified Person, any such non-Indemnified Claim insofar remedies as it is with respect to such Indemnified Person shall not may be covered by the indemnity in Sections 5.1, 7.2, 15.1 and 15.2, the Indemnifying Party shall not be obligated to undertake, conduct and control the defense or settlement of such non-Indemnified Claim insofar as it is with respect to such Indemnified Person, and such Indemnified Person shall be responsible for its own defense and settlement of such non-Indemnified Claim. The seeking by a party of indemnity hereunder on behalf of any Indemnified Person with respect to any third party claim or other claim or matter shall not prevent such party from then or thereafter also seeking indemnity hereunder on behalf of any other Indemnified Person with respect to such third party claim or other claim or matter and shall not prevent the other party from seeking indemnity hereunder on behalf of any Indemnified Person with respect available to the same third party claim or other claim or matterIndemnified Party on the terms and subject to the provisions of this Agreement.
Appears in 1 contract
Samples: Equity Purchase Agreement
Indemnification and Defense Procedures. A Person which is entitled to be indemnified under Section 5.1, 7.26.5(b), 15.1 13.1 or 15.2 13.2 is herein referred to as an "“Indemnified Person" ” and the party Party which is obligated to indemnify an Indemnified Person under Section 5.1, 7.26.5 (b), 15.1 13.1 or 15.2 13.2 is herein referred to as the "“Indemnifying Party" ” with respect to the matter for which it is obligated to indemnify such Indemnified Person. All claims for indemnification under Sections 5.1, 7.26.5(b), 15.1 13.1 and 15.2 13.2 shall be asserted and resolved as follows:
(a) If a third third-party claim for which an Indemnified Person is entitled to indemnity under Sections 5.1, 7.26.5(b), 15.1 and/or 15.2 13.1 or 13.2 (an "“Indemnified Claim"”) is made against an Indemnified Person, and if Buyer or Seller intends to seek indemnity with respect thereto by or from an Indemnifying Party pursuant to Sections 5.1, 7.26.5(b), 15.1 and/or 15.213.1 or 13.2, as the case may be, then the party Party electing to seek indemnity on behalf of such Indemnified Person shall promptly transmit to the Indemnifying Party a written notice ("“Claim Notice"”) (i) notifying such Indemnifying Party of such Indemnified Claim and request requesting indemnity on behalf of such Indemnified Person with respect to such Indemnified Claim under Sections 5.1, 7.26.5(b), 15.1 and/or 15.213.1 or 13.2, as the case may be, (ii) setting forth the full name, address for all notices and the authorized representatives of such Indemnified Person with respect to such Indemnified Claim, and (iii) describing in reasonable detail the nature of the Indemnified Claim, including a copy of all papers served with respect to such Indemnified Claim (if any) and the basis of such request for indemnification under Sections 5.1, 7.26.5 (b), 15.1 and/or 15.213.1 or 13.2, as the case may be. Failure to provide such Claim Notice promptly shall not affect the right of the Indemnified Person to indemnification hereunder except to the extent the Indemnifying Party is prejudiced thereby; provided that, the Indemnifying Party shall not be obligated to defend, indemnify or otherwise hold harmless an Indemnified Person with respect to a third third-party claim until a Claim Notice meeting the foregoing requirements is furnished to the Indemnifying Party by the party Party seeking indemnity hereunder. Within 30 days after receipt of any Claim Notice (the "“Election Period")”) from a Party, the Indemnifying Party shall notify the party Party who sent the Claim Notice (A) whether the Indemnifying Party disputes its potential liability to indemnify the Indemnified Person under Sections 5.1, 7.26.5(b), 15.1 and/or 15.213.1 or 13.2, as the case may be, with respect to such third third-party claim and (B) whether the Indemnifying Party desires to defend the Indemnified Person against such third third-party claim; provided that, if the Indemnifying Party fails to so notify the Indemnified Person Party who sent the Claim Notice during the Election Period, the Indemnifying Party shall be deemed to have elected to dispute such liability and not to defend against such third third-party claim. The aforesaid election or deemed election by the Indemnifying Party not to assume the defense of the Indemnified Person with respect to such Indemnified Claim, however, shall be subject to the right of the Indemnifying Party to subsequently assume the defense of the Indemnified Person with respect to such Indemnified Claim at any time prior to settlement or final determination thereof.
(b) If the Indemnifying Party notifies the party Party who sent the Claim Notice within the Election Period that the Indemnifying Party (i) does not dispute its liability to indemnify the Indemnified Person under Sections 5.1, 7.26.5(b), 15.1 and/or 15.213.1 or 13.2, as the case may be (or reserves the right to dispute whether such claim is an Indemnified Claim under Sections 5.1be, 7.2, 15.1 and/or 15.2) and (ii) elects to assume the defense of such Indemnified Person with respect to such third third-party claim, then the Indemnifying Party shall have the right to defend, at its sole cost and expense, such third third-party claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 15.3(b13.3(b). If an Indemnifying Party elects pursuant to the foregoing to assume the defense of an Indemnified Person with respect to a third party claim which is subsequently determined not to be an Indemnified Claim, then, without limiting any action the Indemnifying Party may have on account of actual fraud, the Indemnifying Party shall not be entitled to recover from the other party or the Indemnified Person the costs and expenses incurred by the Indemnifying Party in providing such defense. The Indemnifying Party shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided that that, the Indemnifying Party shall not enter into any settlement agreement (or settle or compromise any such third third-party claim in a manner) which provides for or results in any payment by or liability of the Indemnified Person of or for any damages or other amount, any lien, charge or encumbrance on any property of the Indemnified Person, any finding of responsibility or liability on the part of the Indemnified Person or any sanction or restriction upon the conduct of any business by the Indemnified Person without the Indemnified Person's ’s express written consent, which consent shall not be unreasonably withheld. The Indemnified Person is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Person is actually entitled to indemnification hereunder), to file, during the Election Period, any motion, answer or other pleadings which the Indemnified Person shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party and not reasonably expected to be prejudicial to the Indemnifying Party. If requested by the Indemnifying Party, the Indemnified Person agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any such third third-party claim which the Indemnifying Party elects to contest, including the making of any related counterclaim or cross-complaint against any Person (other than a Buyer Indemnified Person, if the Indemnified Person is a Buyer Indemnified Person, or a Seller Indemnified Person, if the Indemnified Person is a Seller Indemnified Person). The Indemnified Person may participate in, but not control, any defense or settlement of any third third-party claim controlled by the Indemnifying Party pursuant to this Section 15.3(b13.3(b), and the Indemnified Person shall bear its own costs and expenses with respect to such participation. The prosecution of the defense of a third third-party claim with reasonable diligence shall include the taking of such action (including the posting of a bond, deposit or other security) as may be necessary to prevent any action to foreclose a lien against or attachment of the property of the Indemnified Person for payment of such third third-party claim.
(c) If the Indemnifying Party (i) fails to notify the party Party who sent the Claim Notice within the Election Period that the Indemnifying Party elects to defend the Indemnified Person pursuant to Section 15.3(b13.3(b) or (ii) elects to defend the Indemnified Person pursuant to Section 15.3(b13.3 (b) but fails to prosecute the defense of (or to settle) the third third-party claim with reasonable diligence, then the Indemnified Person shall have the right to defend, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Person is actually entitled to indemnification hereunder), the third third-party claim by all appropriate proceedings, which proceedings shall be promptly and vigorously prosecuted by the Indemnified Person to a final conclusion or settled. Unless and until such defense is assumed by the Indemnifying Party as permitted in Section 15.3(a), the The Indemnified Person shall have full control of such defense and proceedings; provided, however, that the Indemnified Person may not enter into any compromise or settlement of such third-party claim, without the Indemnifying Party’s express written consent, without assuming the defense of such Indemnified Claim, which shall not be unreasonably withheld or delayed. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Person pursuant to this Section 15.3(c13.3(c), and the Indemnifying Party shall bear its own costs and expenses with respect to such participation. The Indemnified Person may not enter into any compromise or settlement of such third party claim, without the Indemnifying Party's express written consent, which shall not be unreasonably withheld.
(d) If an Indemnified Person is entitled to indemnity under Sections 5.1, 7.2, 15.1 and/or 15.2 for a claim or other matter which does not involve a third party claim, and if Buyer or Seller intends to seek indemnity on behalf of an Indemnified Person with respect thereto by or from an Indemnifying Party pursuant to Sections 5.1, 7.2, 15.1 and/or 15.2, then the party electing to seek indemnity on behalf of an Indemnified Person shall promptly transmit to the Indemnifying Party a written notice describing in reasonable detail the nature of such claim or other matter, the Indemnified Person's best estimate of the amount of damages attributable to such claim or other matter and the basis for the Indemnified Person's entitlement to indemnification under Sections 5.1, 7.2, 15.1 and/or 15.2, as the case may be. If the Indemnifying Party does not notify the party who sent such notice within 30 days from its receipt of such notice that the Indemnifying Party does not dispute such claim for indemnity, the Indemnifying Party shall be deemed to have disputed such claim.
(e) To the extent any claim, action, suit or proceeding includes one or more Indemnified Claims with respect to an Indemnified Person and one or more third party claims which are not Indemnified Claims with respect to such Indemnified Person, any such non-Indemnified Claim insofar as it is with respect to such Indemnified Person shall not be covered by the indemnity in Sections 5.1, 7.2, 15.1 and 15.2, the Indemnifying Party shall not be obligated to undertake, conduct and control the defense or settlement of such non-Indemnified Claim insofar as it is with respect to such Indemnified Person, and such Indemnified Person shall be responsible for its own defense and settlement of such non-Indemnified Claim. The seeking by a party of indemnity hereunder on behalf of any Indemnified Person with respect to any third party claim or other claim or matter shall not prevent such party from then or thereafter also seeking indemnity hereunder on behalf of any other Indemnified Person with respect to such third party claim or other claim or matter and shall not prevent the other party from seeking indemnity hereunder on behalf of any Indemnified Person with respect to the same third party claim or other claim or matter.
Appears in 1 contract
Samples: Asset Purchase Agreement
