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Common use of Indemnification Claim Procedure Clause in Contracts

Indemnification Claim Procedure. (i) Any Indemnified Party shall promptly notify the Party or Parties alleged to be obligated to indemnify (the “Indemnifying Party”) in writing of any relevant pending or threatened Claim by a third party (a “Third Party Claim”), describing in reasonable detail the facts and circumstances with respect to the subject matter of the Claim; provided, however, that delay in providing such notice shall not release the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), except to the extent (and only to the extent) the delay actually and materially prejudices the Indemnifying Party’s ability to defend such Claim. (ii) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party by accepting its obligation to defend in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s fees and expenses) within 30 days of receiving notice of the Third Party Claim. If the Indemnifying Party declines, fails to respond to the notice, or fails to assume defense of the Third Party Claim within such 30-day period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Party Claim, without the consent of any Indemnified Party; provided, however, that the Indemnified Party shall not withhold its consent if such settlement or judgment involves solely the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this notice, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13. If the Indemnifying Party does not respond within 30 days, the Indemnified Party shall send a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the Indemnified Party within such 5 Business Days after the receipt of such second notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall meet or confer by telephone within 20 Business Days in an attempt in good faith to resolve such dispute. If such Persons are unable to resolve the dispute, either Party may act to resolve the dispute in accordance with Section 32(b).

Appears in 5 contracts

Samples: Sale Site Master Lease Agreement (Crown Castle International Corp), MPL Site Master Lease Agreement (Crown Castle International Corp), MPL Site Master Lease Agreement (Crown Castle International Corp)

Indemnification Claim Procedure. Except as provided in Section 8.4.2 with respect to Third Party claims, in the event of a claim made by a Purchaser Indemnitee or a Seller Indemnitee (i) Any the “Indemnified Party”), the Indemnified Party shall promptly notify give reasonably prompt written notice to the other Party or Parties alleged to be obligated to indemnify (the “Indemnifying Party”) in writing of any relevant pending or threatened Claim by a third party (a “Third Party Claim”), describing which notice (an “Indemnification Certificate”) shall: (a) state that the Indemnified Party has paid or properly accrued or in good faith anticipates that it will have to pay or accrue Losses that are subject to indemnification by the Indemnifying Party pursuant to Section 8.3.1 or Section 8.3.2, as applicable; and (b) specify in reasonable detail the facts and circumstances with respect to supporting the subject matter of the Claim; provided, however, that delay in providing such notice shall not release the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), except Indemnified Party’s claim for indemnification (to the extent (known) and only contain a non-binding preliminary, good faith estimate of the amount to the extent) the delay actually and materially prejudices the Indemnifying Party’s ability to defend such Claim. (ii) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable to which the Indemnified Party by accepting its obligation claims to defend in writing and agreeing to pay defense costs be entitled (including reasonable out-of-pocket attorney’s fees and expenses) within 30 days of receiving notice of the Third Party Claim. If the Indemnifying Party declines, fails to respond to the notice, or fails to assume defense of the Third Party Claim within such 30-day period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Party Claim, without the consent of any Indemnified Partyextent known); provided, however, that the Indemnified Party failure to give reasonably prompt notice shall not withhold its consent if such settlement or judgment involves solely relieve the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The applicable Indemnifying Party shall pay of its indemnification obligations under this Agreement except to the extent that the Indemnifying Party is materially prejudiced by any delay in receiving such notice. In the event that the Indemnifying Party agrees to or cause is determined to be paid all amounts arising out of such settlement have an obligation to indemnify or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, reimburse the Indemnified Party promptly shall notify the Indemnifying Party for Losses as provided in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this noticeARTICLE 8, the Indemnifying Party shall respondshall, stating whether it disputes subject to the existence or scope provisions of an obligation this Section 8.4.1, promptly (but in any event, within thirty (30) days of receipt of the Indemnification Certificate) pay such amount to indemnify the Indemnified Party under this Section 13by wire transfer of immediately available funds to the account specified in writing by the Indemnified Party. If the Indemnifying Party does not respond within 30 daysobjects to all or a portion of the Indemnified Party’s claim made in the Indemnification Certificate, the Indemnifying Party will notify the Indemnified Party shall send of such objection by delivering a second notice written statement (the “Objection Notice”) to the Indemnifying Party within sixty (60) days following receipt of the Indemnification Certificate (the “Response Period”). The Objection Notice shall indicate whether the Indemnifying Party objects to all or only a portion of the claim specified in the Indemnification Certificate and shall specify in reasonable detail the facts and circumstances supporting the Indemnifying Party, marked at the top ’s basis and reasons for such objection. An Indemnifying Party’s failure to deliver an Objection Notice in bold lettering accordance with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” provisions of this Section 8.4.1 within the Response Period to any claim set forth in an Indemnification Certificate shall be deemed to be the Indemnifying Party’s acceptance of, and waiver of any objections to, such claim and the envelope containing Indemnifying Party shall be deemed to have agreed that an amount equal to the request must be marked “PRIORITY”full claimed amount specified in the Indemnification Certificate is owed to the Indemnified Party. If the Indemnifying Party in its Objection Notice objects only to a portion of the claim set forth in the Indemnification Certificate (the amount of Losses claimed in the Indemnification Certificate to which the Indemnifying Party does not notify object shall be referred to herein as the “Agreed Amount”), then such Indemnifying Party shall, within ten (10) Business Days following the delivery of such Objection Notice pay the Agreed Amount to the Indemnified Party. If an Indemnifying Party shall provide Objection Notice in accordance with the provisions of this Section 8.4.1, the Indemnifying Party and the Indemnified Party within such 5 Business Days after the receipt of such second notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall meet or confer by telephone within 20 Business Days in an attempt in good faith for a period of twenty (20) days following the Indemnified Party’s receipt of the Objection Notice to resolve agree upon the rights of the respective parties with respect to each of such disputeclaims. If no such Persons are unable to resolve the disputeagreement can be reached after such twenty (20)-day period of good faith negotiation, either the Indemnifying Party or the Indemnified Party may act to resolve initiate Litigation for purposes of having the dispute matter settled in accordance with Section 32(b)the terms of this Agreement.

Appears in 5 contracts

Samples: Asset Purchase Agreement (Apricus Biosciences, Inc.), Asset Purchase Agreement (Pernix Therapeutics Holdings, Inc.), Asset Purchase Agreement (Zogenix, Inc.)

Indemnification Claim Procedure. (i) Any Indemnified Party shall promptly notify the Party or Parties alleged to be obligated to indemnify (the “Indemnifying Party”) in writing of any relevant pending or threatened Claim by a third party (a “Third Party Claim”), ) describing in reasonable detail the facts and circumstances with respect to the subject matter of the Third Party Claim; provided, however, that delay in providing such notice shall not release the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), except to the extent (and only to the extent) the delay actually and materially prejudices the Indemnifying Party’s ability to defend such Third Party Claim. (ii) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party by accepting its obligation to defend in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s fees and expenses) within 30 days of receiving notice of the Third Party Claim. If the Indemnifying Party declinesdeclines to indemnify as required, fails to respond to the notice, or fails to assume defense (or cause its insurer to assume defense) of the Third Party Claim within such 30-day period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own cost and expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement or compromise of, or the entry of any judgment arising out of or in connection with, any Third Party Claim, without the consent of any Indemnified Party; provided, however, Party (provided that the Indemnified Party shall may not withhold its consent if such settlement settlement, compromise or judgment involves solely the payment of money, money without any finding or admission of any violation of Law or admission of any wrongdoingwrongdoing and will not create, in the reasonable opinion of the Indemnified Party or adverse precedent with respect to the third party or any other person similarly situated as the third party with respect to other similar Third Party Claims or reasonably anticipated potential similar Third Party Claims). The Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement settlement, compromise or judgment concurrently with the effectiveness of such settlement settlement, compromise or entry of judgment and shall obtain, as a condition of any settlement settlement, compromise or entry of judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this notice, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13. If the Indemnifying Party does not respond within 30 days, the Indemnified Party shall send a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) 10 BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the Indemnified Party within such 5 10 Business Days after the receipt of such second notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall meet or confer by telephone within 20 Business Days in an attempt in good faith to resolve such dispute. If such Persons are unable to resolve the dispute, either Party may act to resolve the dispute in accordance with Section 32(b33(b).

Appears in 4 contracts

Samples: MPL Site Master Lease Agreement (American Tower Corp /Ma/), Sale Site Master Lease Agreement (American Tower Corp /Ma/), Sale Site Master Lease Agreement (American Tower Corp /Ma/)

Indemnification Claim Procedure. (i) Any Indemnified Party shall promptly notify the Party or Parties alleged to be obligated to indemnify (the “Indemnifying Party”) in writing of any relevant pending or threatened Claim by a third party (a “Third Party Claim”), describing in reasonable detail the facts and circumstances with respect to the subject matter of the Claim; provided, however, that delay in providing such notice shall not release the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), except to the extent (and only to the extent) the delay actually and materially prejudices the Indemnifying Party’s 's ability to defend such Claim. (ii) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party by accepting its obligation to defend in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s 's fees and expenses) within 30 days of receiving notice of the Third Party Claim. If the Indemnifying Party declines, fails to respond to the notice, or fails to assume defense of the Third Party Claim within such 30-day period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Party Claim, without the consent of any Indemnified Party; provided, however, that the Indemnified Party shall not withhold its consent if such settlement or judgment involves solely the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this notice, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13. If the Indemnifying Party does not respond within 30 days, the Indemnified Party shall send a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the Indemnified Party party within such 5 Business Days after the receipt of such second notice 30-day period that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the ClaimClaim within such 30-day period, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party Party, at the Vice President level or higher, shall meet or confer by telephone within 20 Business Days in an attempt in good faith to resolve such dispute. If such Persons are unable to resolve the dispute, either Party may act to resolve the dispute in accordance with Section 32(bSections 34(i) and 34(j).

Appears in 2 contracts

Samples: Sale Site Master Lease Agreement (T-Mobile US, Inc.), Sale Site Master Lease Agreement (Crown Castle International Corp)

Indemnification Claim Procedure. Except as provided in Section 7.2.2 with respect to Third Party claims, in the event of a claim made by a Horizon Indemnitee or a AstraZeneca Indemnitee (i) Any the “Indemnified Party”), the Indemnified Party shall promptly notify give reasonably prompt written notice to the other Party or Parties alleged to be obligated to indemnify (the “Indemnifying Party”) in writing of any relevant pending or threatened Claim by a third party (a “Third Party Claim”), describing which notice (an “Indemnification Certificate”) shall: (a) state that the Indemnified Party has paid or properly accrued or reasonably anticipates that it will have to pay or accrue Losses that are subject to indemnification by the Indemnifying Party pursuant to Section 7.1.1 or Section 7.1.2, as applicable, and (b) specify in reasonable detail the facts individual items and circumstances with respect to the subject matter amounts of the Claim; provided, however, that delay in providing such notice shall not release the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), except to the extent (and only to the extent) the delay actually and materially prejudices the Indemnifying Party’s ability to defend such Claim. (ii) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party by accepting its obligation to defend in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s fees and expenses) within 30 days of receiving notice of the Third Party Claim. If the Indemnifying Party declines, fails to respond to the notice, or fails to assume defense of the Third Party Claim within such 30-day period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoingLosses, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending date each such Third Party Claim) if the Third Party Claim seeks an order, injunction item was paid or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement ofproperly accrued, or the entry basis for such anticipated Liability, and a description of any judgment arising out the basis of or in connection with, any Third Party Claim, without the consent of any such Indemnified Party’s claim for indemnification; provided, however, that the failure to give reasonably prompt notice shall not relieve the applicable Indemnifying Party of its indemnification obligations under this Agreement except to the extent that the Indemnifying Party is materially prejudiced by any delay in receiving such notice. In the event that the Indemnifying Party agrees to or is determined to have an obligation to reimburse the Indemnified Party shall not withhold its consent if for Losses as provided in this Article 7, the Indemnifying Party shall, subject to the provisions of Section 7.3, promptly (but in any event, within 30 days) pay such settlement or judgment involves solely amount to the payment Indemnified Party by wire transfer of money, without any finding or admission of any violation of Law or admission of any wrongdoingimmediately available funds to the account specified in writing by the Indemnified Party. The Indemnifying Party shall pay or cause may defer making such payment if it objects in a written statement to be paid all amounts arising out of the claim made in the Indemnification Certificate and delivers such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify statement to the Indemnifying Party prior to the expiration of such 30-day period. An Indemnifying Party’s failure to object within such 30-day period to any claim set forth in an Indemnification Certificate shall be deemed to be the Indemnifying Party’s acceptance of, and waiver of any objections to, such claim. If an Indemnifying Party shall so object in writing of to any Claim for indemnification, describing claim or claims made in reasonable detail the basis for such Claim. Within 30 days following receipt of this noticeany Indemnification Certificate, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13. If the Indemnifying Party does not respond within 30 days, and the Indemnified Party shall send a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the Indemnified Party within such 5 Business Days after the receipt of such second notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall meet or confer by telephone within 20 Business Days in an attempt in good faith for a period of 20 days following the Indemnified Party’s receipt of such objection notice to resolve agree upon the respective rights of the parties with respect to each of such disputeclaims. If no such Persons are unable to resolve the disputeagreement can be reached after such 20-day period of good faith negotiation, either the Indemnifying Party or the Indemnified Party may act pursue dispute resolution pursuant to resolve the dispute in accordance with Section 32(b)9.2.

Appears in 2 contracts

Samples: Asset Purchase Agreement (Horizon Pharma, Inc.), Asset Purchase Agreement (Horizon Pharma, Inc.)

Indemnification Claim Procedure. (ia) Any If any Purchaser Indemnified Party shall promptly notify or Seller Indemnified Party, as applicable (in the capacity as a Person seeking indemnification under this Article VII, the “Indemnified Party”), obtains actual knowledge of any matter that the Indemnified Party or Parties alleged believes will entitle the Indemnified Party to be obligated to indemnify indemnification from another Party under this Article VII (in the capacity as a Person against whom indemnification is sought under this Article VII, the “Indemnifying Party”) in writing of any relevant pending or threatened Claim by ), the Indemnified Party shall promptly thereafter deliver to the Indemnifying Party a third party notice thereof (a “Third Party Notice of Claim”), ) describing such matter in reasonable detail detail, the facts and circumstances with respect basis for the indemnification obligation and, to the subject matter of extent reasonably estimable, the Claimestimated Losses resulting therefrom; provided, however, that delay in providing any failure to give such notice notification on a timely basis or to provide any particular details therein shall not release relieve the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), obligation to indemnify any Indemnified Party hereunder except to the extent (and only that such failure to the extent) the provide, delay in providing or omission of any particular detail actually and materially prejudices the ability of the Indemnifying Party’s ability Party to defend against such Claimmatter. (iib) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable shall respond to the Indemnified Party by accepting its obligation to defend in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s fees and expensesa “Claim Response”) within 30 thirty (30) days following the date that the Notice of receiving notice Claim is delivered to the Indemnifying Party (the “Response Period”). Any Claim Response must specify whether or not the Indemnifying Party disputes the claim(s) described in the Notice of Claim and, if known, describe in reasonable detail the Third basis for each such dispute and include supporting materials. If the Indemnifying Party fails to give a Claim Response within the Response Period, the Indemnifying Party shall be deemed not to dispute the claim(s) described in the related Notice of Claim. If the Indemnifying Party declinesgives a Claim Response with the Response Period but does not in such Claim Response dispute all of the claim(s) made in the related Notice of Claim, fails the Indemnifying Party shall be deemed not to respond dispute the undisputed claim(s) described in the related Notice of Claim. If the Indemnifying Party delivers a Claim Response within the Response Period indicating that it disputes one or more of the matters identified in the Notice of Claim, Purchaser and the Seller shall promptly meet in good faith to resolve the dispute. If Purchaser and the Seller do not resolve a dispute regarding a claim within thirty (30) days following the date that the Notice of Claim is delivered to the noticeIndemnifying Party, either the Indemnifying Party or fails the Indemnified Party may submit the dispute to assume defense a court of competent jurisdiction for resolution. Upon final resolution of such dispute, whether by agreement among Purchaser and the Seller or by a final, non-appealable determination by a court of competent jurisdiction, if it is determined that any indemnification payment is required pursuant to this Article VII shall be paid to the Indemnified Party. (c) Any Indemnifying Party will have the right to defend the Indemnified Party against a Third Party Claim with counsel of the Indemnifying Party’s choice, reasonably satisfactory to the Indemnified Party, so long as (i) the settlement or an adverse judgment of the Third Party Claim within such 30-day periodis not, then in the good faith judgment of the Indemnified Party may control Party, likely to establish a pattern or practice adverse to the defense and continuing business interests of the Indemnified Party, (ii) the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling conducts the defense of the Third Party Claim shall have the right to participate in the defense actively, competently and to retain separate counsel diligently and at its own costs and expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim and (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claimiii) if the Third Party Claim seeks does not involve injunctive relief, specific performance or other similar equitable relief, or any criminal allegations, or a proceeding in which Purchaser or any of its Affiliates is named as a party and where the underlying claims in the proceeding are of a nature that would, if a judgment was entered against Purchaser or such Affiliates, reasonably be anticipated to substantially and adversely affect the goodwill or reputation of Purchaser or such Affiliates. So long as the conditions set forth in this Section 7.4(c) are and remain satisfied, then (i) the Indemnifying Party may conduct the defense of the Third Party Claim in accordance with this Section 7.4(c), (ii) the Indemnified Party may retain separate co-counsel at its sole cost and expense, (iii) the Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld, conditioned or delayed), (iv) the Indemnifying Party will not consent to the entry of any judgment with respect to the matter, or enter into any settlement which (A) imposes an order, injunction or other equitable relief or relief for other than money damages against upon the Indemnified Party that the Indemnified Party reasonably determinesParty, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iiiB) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Party Claim, without the consent of any Indemnified Party; provided, however, that the Indemnified Party shall not withhold its consent if such settlement or judgment involves solely the payment of money, without any finding or admission of any violation of Law or admission any violation of the rights of any wrongdoing. The Indemnifying Party shall pay Person and would have any adverse effect on any other claims that may be made against the Indemnified Party, or cause to be paid all amounts arising out of such settlement (C) does not include a provision whereby the plaintiff or judgment concurrently with claimant in the effectiveness of such settlement matter completely, finally and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant unconditionally releases the Indemnified Party from any all Liability with respect thereto, and all liability in respect of such Third Party Claim. (ivv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify shall, at the Indemnifying Party’s request and at the Indemnifying Party’s expense, reasonably cooperate in the defense of the matter including making available to the Indemnifying Party all witnesses, pertinent records, materials and information in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this notice, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party Party's possession or under this Section 13. If the Indemnifying Party does not respond within 30 days, the Indemnified Party shall send a second notice to Party's control relating therefore as is reasonably required by the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify subject to such reasonable confidentiality requirements as the Indemnified Party within such 5 Business Days after may request and any applicable privilege protections. In the receipt of such second notice event that the Indemnifying Party disputes its liability to the Indemnified Party under conditions in this Section 13(a7.4(c) are not satisfied or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, become unsatisfied in the case of any notice in which Third Party Claim, then the amount Indemnified Party may assume control of the Claim (or any portion thereof) is estimated, on such later date when the amount defense of such claim to the entire exclusion (including with respect to settlement or such portion thereofentry of judgment) becomes finally determined. If and at the expense of the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the disputeParty. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives The failure of the Indemnified Party and to participate in, conduct or control such defense shall not relieve the Indemnifying Party shall meet or confer by telephone within 20 Business Days in an attempt in good faith to resolve such dispute. If such Persons are unable to resolve the dispute, either Party of any obligation it may act to resolve the dispute in accordance with Section 32(b)have hereunder.

Appears in 2 contracts

Samples: Stock Purchase Agreement (GBS Enterprises Inc), Stock Purchase Agreement (GBS Enterprises Inc)

Indemnification Claim Procedure. (ia) Any If any Party asserting a claim for indemnification (an “Indemnified Party”) shall desire to assert any claim for indemnification provided for under this Article 11 in respect of, arising out of or involving a claim or demand made by any Person (other than a Party) against an Indemnified Party (a “Third Party Claim”), such Indemnified Party shall promptly notify the Party or Parties alleged to be obligated to indemnify (the “Indemnifying Party”) in writing of any relevant pending or threatened Claim by a third party (a “such Third Party Claim”), describing in reasonable detail the facts and circumstances with respect amount or the estimated amount of Claims sought thereunder, any other remedy sought thereunder, any relevant time constraints relating thereto and, to the subject matter extent practicable, any other material details pertaining thereto (a “Third Party Claim Notice”) promptly after receipt by such Indemnified Party of written notice of the Third Party Claim; provided, however, that any failure to provide or delay in providing such notice a Third Party Claim Notice shall not release affect the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), indemnification provided hereunder except to the extent (and only the Indemnifying Party shall have been actually prejudiced as a result of such failure or delay. To the extent permitted by applicable Law, the Indemnified Party shall deliver to the extentIndemnifying Party, promptly after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim; provided, however, that any failure to deliver or delay actually and materially prejudices in delivering such copies shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party’s ability to defend such Claimclaim shall have been actually prejudiced as a result of such failure or delay. (iib) The Indemnifying Party may assume and control the defense of any If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party that is and reasonably acceptable satisfactory to the Indemnified Party by accepting its obligation delivering notice to defend the Indemnified Party in writing within 20 Business Days after receiving the Third Party Claim Notice that it elects to assume such defense and agreeing to pay its defense costs in connection therewith (including reasonable out-of-pocket attorney’s attorneys’ fees and expenses) within 30 days of receiving notice of the Third Party Claim). If the Indemnifying Party declines, fails to respond to the notice, Third Party Claim Notice or fails to assume the defense of the Third Party Claim within such 30-day 20 Business Day period, then the Indemnified Party may control the defense and of such Third Party Claim. Should the Indemnifying Party shall pay all reasonable out-of-pocket elect to assume the defense costs as of a Third Party Claim, the Indemnifying Party will not be required to indemnify the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party. The Party that is not controlling in connection with the defense of thereof, unless the Third Party Claim involves conflicts of interest or substantially different defenses for the Indemnified Party and the Indemnifying Party. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof and to retain separate counsel employ counsel, at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith expense (except as provided in the defense of immediately preceding sentence), separate from the counsel employed by the Indemnifying Party. If the Indemnifying Party chooses to defend any Third Party Claim, all the Parties hereto shall cooperate in the defense or prosecution thereof. Notwithstanding Such cooperation shall include using commercially reasonable efforts to retain and (upon the foregoingIndemnifying Party’s request) provide to the Indemnifying Party records and information that are reasonably relevant to such Third Party Claim, and using commercially reasonable efforts to make employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party shall not be entitled to assume have assumed the defense of a Third Party Claim, the Indemnified Party shall not admit any Liability with respect to, or settle, compromise or discharge, such Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, without the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) Party’s prior written consent. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Party Claim, Claim without the written consent of any the applicable Indemnified Party; provided, however, that the Indemnified Party shall not withhold its consent if (i) contemporaneously with the effectiveness of such settlement settlement, compromise or judgment involves solely consent, the payment of moneyIndemnifying Party pays in full any obligation imposed on the Indemnified Party by such settlement, compromise or consent, which as a condition to such settlement, compromise or consent releases each relevant Indemnified Party completely and unconditionally in connection with such settlement, compromise or consent and without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying wrongdoing and (ii) such settlement, compromise or consent does not contain any equitable Order or term which in any manner affects, restrains or interferes with the business of the Indemnified Party or any of the Indemnified Party’s Affiliates. (c) If an Indemnified Party shall pay or cause desire to be paid all amounts assert any claim for indemnification provided for under this Article 11 other than a claim in respect of, arising out of or involving a Third Party Claim (a “Direct Claim”), such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party shall promptly shall notify the Indemnifying Party in writing of any Claim for indemnificationsuch Direct Claim, describing in reasonable detail the basis for such Claim. Within 30 days following receipt specific provisions of this noticeAgreement claimed to have been breached, the factual basis supporting the contention that such provisions were breached, the amount or the estimated amount of damages sought thereunder, any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Direct Claim Notice”); provided, however, that any failure to provide or delay in providing such notification shall not affect the indemnification provided for hereunder except to the extent the Indemnifying Party shall respondhave been actually prejudiced as a result of such failure or delay. The Indemnifying Party shall have a period of 20 Business Days within which to respond to any Direct Claim Notice, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13Article 11. If the Indemnifying Party does not so respond within 30 days, the Indemnified Party shall send a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the Indemnified Party within such 5 20 Business Days after the receipt of such second notice Day period stating that the Indemnifying Party disputes its liability for such claim, the Indemnifying Party will be deemed to the Indemnified Party under Section 13(a) or Section 13(b), as applicablehave accepted such claim, such Claim specified by the Indemnified Party in such notice claim shall be conclusively deemed deeded a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim claim to the Indemnified Party on as promptly as reasonably practicable after demand therefore or, in the case of any notice Direct Claim Notice in which the amount of the Claim claim (or any portion thereof) is estimated, on as promptly as reasonably practicable after such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence all or scope any part of an obligation to indemnify for the Claimsuch claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall meet or confer by telephone within 20 Business Days in an attempt in good faith for 20 Business Days to resolve such disputeclaim. If no such Persons are unable to resolve the disputeagreement can be reached through good faith negotiation within 20 Business Days, either the Indemnified Party or the Indemnifying Party may act to resolve the such dispute in accordance with Section 32(b)13.2. (d) The AT&T Contributors and their Affiliates shall control the defense of all Claims related to Pre-Closing Liabilities.

Appears in 2 contracts

Samples: Master Agreement (Crown Castle International Corp), Master Agreement (At&t Inc.)

Indemnification Claim Procedure. (i) Any Indemnified Party shall promptly notify the Party or Parties alleged to be obligated to indemnify (the “Indemnifying Party”) in writing of any relevant pending or threatened Claim by a third party (a “Third Party Claim”), describing in reasonable detail the facts and circumstances with respect to the subject matter of the Third Party Claim; provided, however, that delay in providing such notice shall not release the Indemnifying Party from any of its obligations under Section 13(a15(a) or Section 13(b15(b), except to the extent (and only to the extent) the delay actually and materially prejudices the Indemnifying Party’s ability to defend such Third Party Claim. (ii) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party by accepting its obligation to defend in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s fees and expenses) within 30 days of receiving notice of the Third Party Claim. If the Indemnifying Party declinesdeclines to indemnify as required, fails to respond to the notice, or fails to assume defense (or cause its insurer to assume defense) of the Third Party Claim within such 30-day period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own cost and expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement or compromise of, or the entry of any judgment arising out of or in connection with, any Third Party Claim, without the consent of any Indemnified Party; provided, however, Party (provided that the Indemnified Party shall may not withhold its consent if such settlement settlement, compromise or judgment involves solely the payment of money, money without any finding or admission of any violation of Law or admission of any wrongdoingwrongdoing and will not create, in the reasonable opinion of the Indemnified Party, or adverse precedent with respect to the third party or any other person similarly situated as the third party with respect to other similar Third Party Claims or reasonably anticipated potential similar Third Party Claims). The Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement settlement, compromise or judgment concurrently with the effectiveness of such settlement settlement, compromise or entry of judgment and shall obtain, as a condition of any settlement settlement, compromise or entry of judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this notice, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 1315. If the Indemnifying Party does not respond within 30 days, the Indemnified Party shall send a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) 10 BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER PREPAID LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the Indemnified Party within such 5 10 Business Days after the receipt of such second notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a15(a) or Section 13(b15(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a15(a) or Section 13(b15(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall meet or confer by telephone within 20 Business Days in an attempt in good faith to resolve such dispute. If such Persons are unable to resolve the dispute, either Party may act to resolve the dispute in accordance with Section 32(b37(b).

Appears in 2 contracts

Samples: Master Prepaid Lease (American Tower Corp /Ma/), Master Prepaid Lease (American Tower Corp /Ma/)

Indemnification Claim Procedure. Except as provided in Section 7.2.2 with respect to Third Party Claims, in the event of a claim made by a Buyer Indemnitee or a Seller Indemnitee (i) Any the “Indemnified Party”), the Indemnified Party shall promptly notify give reasonably prompt written notice to the other Party or Parties alleged to be obligated to indemnify (the “Indemnifying Party”) in writing of any relevant pending or threatened Claim by a third party (a “Third Party Claim”), describing in reasonable detail the facts and circumstances with respect to the subject matter which notice (an “Indemnification Certificate”) shall: (a) state a description of the Claim; provided, however, that delay in providing basis of such notice shall not release the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), except to the extent (and only to the extent) the delay actually and materially prejudices the Indemnifying Indemnified Party’s ability to defend such Claim. (ii) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party by accepting its obligation to defend in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s fees and expenses) within 30 days of receiving notice of the Third Party Claim. If the Indemnifying Party declines, fails to respond to the notice, or fails to assume defense of the Third Party Claim within such 30-day period, then the Indemnified Party may control the defense claim for indemnification and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim amount (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claimif known) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim anticipates that it will have to pay or accrue for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from Losses that for money damages, are subject to indemnification by the Indemnifying Party shall be entitled pursuant to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement ofSection 7.1.1 or Section 7.1.2, or the entry of any judgment arising out of or in connection with, any Third Party Claim, without the consent of any Indemnified Partyas applicable; provided, however, that the failure to give reasonably prompt notice shall not relieve the applicable Indemnifying Party of its indemnification obligations under this Agreement except to the extent that the Indemnifying Party is materially prejudiced by any delay in receiving such notice. In the event that the Indemnifying Party agrees to or is determined to have an obligation to reimburse the Indemnified Party shall not withhold its consent if for Losses as provided in this Article 7, the Indemnifying Party shall, subject to the provisions of Section 7.3, promptly (but, in any event, within 30 days following such settlement agreement or judgment involves solely determination) pay such amount to the payment Indemnified Party by wire transfer of money, without any finding or admission of any violation of Law or admission of any wrongdoingimmediately available funds to the account specified in writing by the Indemnified Party. The Indemnifying Party shall pay or cause may defer making such payment if it objects in a written statement to be paid all amounts arising out of the claim made in the Indemnification Certificate and delivers such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify statement to the Indemnifying Party prior to the expiration of such 30-day period. An Indemnifying Party’s failure to object within such 30-day period to any claim set forth in an Indemnification Certificate shall be deemed to be the Indemnifying Party’s acceptance of, and waiver of any objections to, such claim. If an Indemnifying Party shall so object in writing of to any Claim for indemnification, describing claim or claims made in reasonable detail the basis for such Claim. Within 30 days following receipt of this noticeany Indemnification Certificate, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13. If the Indemnifying Party does not respond within 30 days, and the Indemnified Party shall send a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the Indemnified Party within such 5 Business Days after the receipt of such second notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall meet or confer by telephone within 20 Business Days in an attempt in good faith for a period of 20 days following the Indemnified Party’s receipt of such objection notice to resolve agree upon the respective rights of the parties with respect to each of such disputeclaims. If no such Persons are unable to resolve the disputeagreement can be reached after such 20-day period of good faith negotiation, either the Indemnifying Party or the Indemnified Party may act to resolve initiate Litigation for purposes of having the dispute matter settled in accordance with Section 32(b)the terms of this Agreement.

Appears in 2 contracts

Samples: Asset Purchase Agreement (Aralez Pharmaceuticals Inc.), Asset Purchase Agreement (Aralez Pharmaceuticals Inc.)

Indemnification Claim Procedure. (ia) Any If any Party asserting a claim for indemnification (an “Indemnified Party”) shall desire to assert any claim for indemnification provided for under this Article 11 in respect of, arising out of or involving a claim or demand made by any Person (other than a Party) against an Indemnified Party (a “Third Party Claim”), such Indemnified Party shall promptly notify the Party or Parties alleged to be obligated to indemnify (the “Indemnifying Party”) in writing of any relevant pending or threatened Claim by a third party (a “such Third Party Claim”), describing in reasonable detail the facts and circumstances with respect amount or the estimated amount of Claims sought thereunder, any other remedy sought thereunder, any relevant time constraints relating thereto and, to the subject matter extent practicable, any other material details pertaining thereto (a “Third Party Claim Notice”) promptly after receipt by such Indemnified Party of written notice of the Third Party Claim; provided, however, that any failure to provide or delay in providing such notice a Third Party Claim Notice shall not release affect the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), indemnification provided hereunder except to the extent (and only the Indemnifying Party shall have been actually prejudiced as a result of such failure or delay. To the extent permitted by applicable Law, the Indemnified Party shall deliver to the extentIndemnifying Party, promptly after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim; provided, however, that any failure to deliver or delay actually and materially prejudices in delivering such copies shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party’s ability to defend such Claimclaim shall have been actually prejudiced as a result of such failure or delay. (iib) The Indemnifying Party may assume and control the defense of any If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party that is and reasonably acceptable satisfactory to the Indemnified Party by accepting its obligation delivering notice to defend the Indemnified Party in writing within 20 Business Days after receiving the Third Party Claim Notice that it elects to assume such defense and agreeing to pay its defense costs in connection therewith (including reasonable out-of-pocket attorney’s attorneys’ fees and expenses) within 30 days of receiving notice of the Third Party Claim). If the Indemnifying Party declinesdeclines to indemnify, fails to respond to the notice, Third Party Claim Notice or fails to assume the defense (or cause its insurer to assume defense) of the Third Party Claim within such 30-day 20 Business Day period, then the Indemnified Party may control the defense and of such Third Party Claim. Should the Indemnifying Party shall pay all reasonable out-of-pocket elect to assume the defense costs as of a Third Party Claim, the Indemnifying Party will not be required to indemnify the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party. The Party that is not controlling in connection with the defense of thereof, unless the Third Party Claim involves conflicts of interest or substantially different defenses for the Indemnified Party and the Indemnifying Party. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof and to retain separate counsel employ counsel, at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith cost and expense (except as provided in the defense of immediately preceding sentence), separate from the counsel employed by the Indemnifying Party. If the Indemnifying Party chooses to defend any Third Party Claim, all the Parties hereto shall cooperate in the defense or prosecution thereof. Notwithstanding Such cooperation shall include using commercially reasonable efforts to retain and (upon the foregoingIndemnifying Party’s request) provide to the Indemnifying Party records and information that are reasonably relevant to such Third Party Claim, to the extent required to maintain privilege, using commercially reasonable efforts to enter into a joint defense or similar agreement and using commercially reasonable efforts to make employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party shall not be entitled to assume have assumed the defense of a Third Party Claim, the Indemnified Party shall not admit any Liability with respect to, or settle, compromise or discharge, such Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, without the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) Party’s prior written consent. The Indemnifying Party shall not consent to a settlement or compromise of, or the entry of any judgment arising out of or in connection with, with any Third Party Claim, Claim without the written consent of any the applicable Indemnified Party; provided, however, that the Indemnified Party shall not withhold its consent if (i) contemporaneously with the effectiveness of such settlement settlement, compromise or judgment involves solely consent, the payment of moneyIndemnifying Party pays in full any obligation imposed on the Indemnified Party by such settlement, compromise or consent, which as a condition to such settlement, compromise or consent releases each relevant Indemnified Party completely and unconditionally in connection with such settlement, compromise or consent and without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying wrongdoing and (ii) such settlement, compromise or consent does not contain any equitable Order or term which in any manner affects, restrains or interferes with the business of the Indemnified Party or any of the Indemnified Party’s Affiliates. (c) If an Indemnified Party shall pay or cause desire to be paid all amounts assert any claim for indemnification provided for under this Article 11 other than a claim in respect of, arising out of or involving a Third Party Claim (a “Direct Claim”), such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party shall promptly shall notify the Indemnifying Party in writing of any Claim for indemnificationsuch Direct Claim, describing in reasonable detail the basis for such Claim. Within 30 days following receipt specific provisions of this noticeAgreement claimed to have been breached, the factual basis supporting the contention that such provisions were breached, the amount or the estimated amount of damages sought thereunder, any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Direct Claim Notice”); provided, however, that any failure to provide or delay in providing such notification shall not affect the indemnification provided for hereunder except to the extent the Indemnifying Party shall respondhave been actually prejudiced as a result of such failure or delay. The Indemnifying Party shall have a period of 20 Business Days within which to respond to any Direct Claim Notice, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13Article 11. If the Indemnifying Party does not so respond within 30 days, the Indemnified Party shall send a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the Indemnified Party within such 5 20 Business Days after the receipt of such second notice Day period stating that the Indemnifying Party disputes its liability for such claim, the Indemnifying Party will be deemed to the Indemnified Party under Section 13(a) or Section 13(b), as applicablehave accepted such claim, such Claim specified by the Indemnified Party in such notice claim shall be conclusively deemed deeded a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim claim to the Indemnified Party on as promptly as reasonably practicable after demand therefore or, in the case of any notice Direct Claim Notice in which the amount of the Claim claim (or any portion thereof) is estimated, on as promptly as reasonably practicable after such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence all or scope any part of an obligation to indemnify for the Claimsuch claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall meet or confer by telephone within 20 Business Days in an attempt in good faith for 20 Business Days to resolve such disputeclaim. If no such Persons are unable to resolve the disputeagreement can be reached through good faith negotiation within 20 Business Days, either the Indemnified Party or the Indemnifying Party may act to resolve the such dispute in accordance with Section 32(b)13.2. (d) The Verizon Contributors and their Affiliates shall control the defense of all Claims related to Pre-Closing Liabilities. The Acquiror and its Affiliates shall control the defense of all Claims related to Post-Closing Liabilities, other than Claims relating to Tax or Tax Proceedings, each of which shall be governed pursuant to Section 2.10 of this Agreement.

Appears in 2 contracts

Samples: Master Agreement, Master Agreement (American Tower Corp /Ma/)

Indemnification Claim Procedure. (ia) Any Indemnified Party seeking indemnification under this Article 12 shall promptly notify give prompt written notice to the Party or Parties alleged to be obligated to indemnify persons against whom indemnification is sought (the “Indemnifying Party”) in writing of the assertion of any relevant pending or threatened Claim claim by a third party (or the discovery of any fact upon which the Indemnified Party intends to base a “Third claim under this Article 12. The delay or failure of any Indemnified Party Claim”), describing to provide notice hereunder shall not in reasonable detail any way limit its indemnification rights hereunder except to the extent that the Indemnifying Party demonstrates that its ability to defend or resolve such claim is actually and materially prejudiced thereby. Any such notice shall describe the facts and circumstances with upon which the asserted claim for indemnification is based and shall include the amount of the indemnified Losses (or, if such amount is not then determined, a good faith estimate thereof) and the basis for the determination of the amount of such Losses. (b) With respect to a third party claim: (i) The Indemnifying Party may, if applicable, and at the subject matter request of the Claim; providedIndemnified Party shall, however, that delay participate in providing such notice shall not release and control the defense of any third party claim at its own expense. If the Indemnifying Party elects to assume the defense (whether or not obligated to) of any such claim, the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party shall be paid by the Indemnified Party. If the Indemnifying Party shall fail to defend a third party claim or, if after commencing or undertaking any such defense, shall fail to prosecute or shall withdraw from any of its obligations under Section 13(a) or Section 13(b)such defense, except the Indemnified Party shall have the right to undertake the extent (and only to the extent) the delay actually and materially prejudices defense thereof at the Indemnifying Party’s ability expense. Notwithstanding the foregoing, if the Indemnifying Party assumes the defense of a third party claim and if the Indemnified Party later determines in good faith that the third party claim is (x) likely to defend materially adversely affect it or its business in a manner that may not be adequately compensated by money damages or (y) may expose the Indemnified Party to potential obligations or Losses that may not be fully satisfied by the Indemnifying Party, then the Indemnified Party may, by written notice to the Indemnifying Party, assume the exclusive right to defend, compromise, or settle such Claimclaim. If the Indemnified Party shall so assume the exclusive right to defend, compromise, or settle such claim as it relates to the Indemnified Party’s liability only, all attorneys’ fees and other expenses incurred by the Indemnified Party in the defense, compromise or settlement of such claim shall be at the Indemnifying Party’s expense. (ii) The Indemnifying Party may assume and control controlling the defense of any Third Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party by accepting its obligation to defend in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s fees and expenses) within 30 days of receiving notice of the Third Party Claim. If the Indemnifying Party declinesthird party suit, fails to respond to the notice, action or fails to assume defense of the Third Party Claim within such 30-day period, then the Indemnified Party may control the defense and the Indemnifying Party proceeding shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform keep the other Party about advised of the status of such action, suit or proceeding and the defense. The Parties defense thereof and shall cooperate consider in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred recommendations made by the Indemnified other Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damagesrespect thereto. (iii) The Indemnifying Party shall not consent to a settlement of, or the entry of settle any judgment arising out of or in connection with, any Third Party Claim, third party claim without the consent (which consent shall not be unreasonably withheld or delayed) of any Indemnified Party; provided, however, that the Indemnified Party shall not withhold its consent if such settlement or judgment involves solely any relief, other than the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this notice, money damages which the Indemnifying Party shall respondbe obligated to pay in full, stating whether it disputes the existence or scope of an obligation to indemnify would be granted against the Indemnified Party under this Section 13. If the Indemnifying Party does not respond within 30 days, or its Affiliates by such settlement or if the Indemnified Party shall send a second notice would be liable to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the Indemnified Party within such 5 Business Days after the receipt third party for any portion of such second notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall meet or confer by telephone within 20 Business Days in an attempt in good faith to resolve such dispute. If such Persons are unable to resolve the dispute, either Party may act to resolve the dispute in accordance with Section 32(b)settlement.

Appears in 2 contracts

Samples: Limited Technology License Agreement (Wellstar International, Inc.), Limited Technology License Agreement (Wellstar International, Inc.)

Indemnification Claim Procedure. (i) Any Indemnified Party shall promptly notify the Party or Parties alleged to be obligated to indemnify (the “Indemnifying Party”) in writing of any relevant pending or threatened Claim by a third party (a “Third Party Claim”), describing in reasonable detail the facts and circumstances with respect to the subject matter of the Claim; provided, however, that delay in providing such notice shall not release the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), except to the extent (and only to the extent) the delay actually and materially prejudices the Indemnifying Party’s 's ability to defend such Claim. (ii) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party by accepting its obligation to defend in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s 's fees and expenses) within 30 days of receiving notice of the Third Party Claim. If the Indemnifying Party declines, fails to respond to the notice, or fails to assume defense of the Third Party Claim within such 30-day period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Party Claim, without the consent of any Indemnified Party; provided, however, that the Indemnified Party shall not withhold its consent if such settlement or judgment involves solely the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this notice, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13. If the Indemnifying Party does not respond within 30 days, the Indemnified Party shall send a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the Indemnified Party party within such 5 Business Days after the receipt of such second notice 30-day period that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the ClaimClaim within such 30-day period, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party Party, at the Vice President level or higher, shall meet or confer by telephone within 20 Business Days in an attempt in good faith to resolve such dispute. If such Persons are unable to resolve the dispute, either Party may act to resolve the dispute in accordance with Section 32(bSections 33(i) and 33(j).

Appears in 2 contracts

Samples: MPL Site Master Lease Agreement (T-Mobile US, Inc.), Master Lease Agreement (Crown Castle International Corp)

Indemnification Claim Procedure. (ia) Any Indemnified Party seeking indemnification hereunder shall promptly notify give prompt written notice to the Party or Parties alleged to be obligated to indemnify persons against whom indemnification is sought (the “Indemnifying Party”) in writing of the assertion of any relevant pending or threatened Claim claim by a third party (or the discovery of any fact upon which the Indemnified Party intends to base a “Third claim hereunder. The delay or failure of any Indemnified Party Claim”), describing to provide notice hereunder shall not in reasonable detail any way limit its indemnification rights hereunder except to the extent that the Indemnifying Party demonstrates that its ability to defend or resolve such claim is actually and materially prejudiced thereby. Any such notice shall describe the facts and circumstances with respect to upon which the subject matter asserted claim for indemnification is based and shall include the amount of the Claim; providedindemnified Losses (or, howeverif such amount is not then determined, that delay in providing a good faith estimate thereof) and the basis for the determination of the amount of such notice shall not release the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), except to the extent (and only to the extent) the delay actually and materially prejudices the Indemnifying Party’s ability to defend such ClaimLosses. (iib) With respect to a third party claim: (i) The Indemnifying Party may assume may, if applicable, and at the request of the Indemnified Party shall, participate in and control the defense of any Third Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party by accepting third party claim at its obligation to defend in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s fees and expenses) within 30 days of receiving notice of the Third Party Claimown expense. If the Indemnifying Party declines, fails to respond to the notice, or fails elects to assume the defense (whether or not obligated to) of any such claim, the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party shall be paid by the Indemnified Party. If the Indemnifying Party shall fail to defend a third party claim or, if after commencing or undertaking any such defense, shall fail to prosecute or shall withdraw from such defense, the Indemnified Party shall have the right to undertake the defense thereof at the Indemnifying Party’s expense. Notwithstanding the foregoing, if the Indemnifying Party assumes the defense of a third party claim and if the Third Indemnified Party Claim within such 30-day periodlater determines in good faith that the third party claim is (x) likely to materially adversely affect it or its business in a manner that may not be adequately compensated by money damages or (y) may expose the Indemnified Party to potential obligations or Losses that may not be fully satisfied by the Indemnifying Party, then the Indemnified Party may control the defense and may, by written notice to the Indemnifying Party, assume the exclusive right to defend, compromise, or settle such claim. If the Indemnified Party shall pay all reasonable out-of-pocket defense costs so assume the exclusive right to defend, compromise, or settle such claim as incurred by it relates to the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing’s liability only, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket all attorneys’ fees and other expenses of counsel incurred by the Indemnified Party in defending the defense, compromise or settlement of such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably claim shall be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, at the Indemnifying Party’s expense; (ii) The Party shall be entitled to assume controlling the defense of any third party suit, action or proceeding shall keep the portion relating to money damages. other Party advised of the status of such action, suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the other Party with respect thereto; and (iii) The Indemnifying Party shall not consent to a settlement of, or the entry of settle any judgment arising out of or in connection with, any Third Party Claim, third party claim without the consent (which consent shall not be unreasonably withheld or delayed) of any Indemnified Party; provided, however, that the Indemnified Party shall not withhold its consent if such settlement or judgment involves solely any relief, other than the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this notice, money damages which the Indemnifying Party shall respondbe obligated to pay in full, stating whether it disputes the existence or scope of an obligation to indemnify would be granted against the Indemnified Party under this Section 13. If the Indemnifying Party does not respond within 30 days, or its Affiliates by such settlement or if the Indemnified Party shall send a second notice would be liable to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the Indemnified Party within such 5 Business Days after the receipt third party for any portion of such second notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall meet or confer by telephone within 20 Business Days in an attempt in good faith to resolve such dispute. If such Persons are unable to resolve the dispute, either Party may act to resolve the dispute in accordance with Section 32(b)settlement.

Appears in 2 contracts

Samples: Technology License Agreement (PAVANA POWER Corp), Technology License Agreement (PAVANA POWER Corp)

Indemnification Claim Procedure. (i) Any If any Buyer Indemnified Party shall promptly notify or Seller Indemnified Party, as applicable, in such capacity (the “Indemnified Party”), learns of any matter that it believes will entitle the Indemnified Party to indemnification from any of the Sellers or Parties alleged to be obligated to indemnify Buyer, as applicable, in such capacity (the “Indemnifying Party”) under this Article IX, the Indemnified Party shall provide to Indemnifying Party notice describing the matter in writing reasonable detail, including the nature of any relevant pending or threatened Claim by a third party the claim, the basis for the indemnification obligation and, to the extent reasonably estimable, the estimated Losses resulting therefrom (a “Third Party Notice of Claim”). The Indemnifying Party shall have ten (10) days after its receipt of the Notice of Claim to respond to the claim(s) described therein in a written notice to the Indemnified Party (a “Dispute Notice”) setting forth, describing in reasonable detail the facts and circumstances with respect to the subject matter of the Claim; provideddetail, however, that delay in providing such notice shall not release the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), except to the extent (and only to the extent) the delay actually and materially prejudices the Indemnifying Party’s ability to defend such Claim. (iiobjection(s) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party by accepting claim(s) and its obligation to defend in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s fees and expenses) within 30 days of receiving notice of the Third Party Claimbases for such objection(s). If the Indemnifying Party declines, fails to respond to the notice, or fails to assume defense of the Third Party Claim within provide a Dispute Notice with such 30-day time period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not will be entitled deemed to assume have conceded the defense claim(s) set forth in the Notice of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Party Claim, without the consent of any Indemnified Party; provided, however, that the Indemnified Party shall not withhold its consent if such settlement or judgment involves solely the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this notice, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13. If the Indemnifying Party does not respond within 30 daysdispute, in its Dispute Notice, all of the claims set forth in the corresponding Notice of Claim, the Indemnified Indemnifying Party shall send a second notice be deemed to the Indemnifying Party, marked at the top have conceded any claims to which it has not disputed in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”such Dispute Notice. If the Indemnifying Party does not notify the Indemnified Party provides a Dispute Notice within such 5 Business Days after the receipt of such second notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) or Section 13(b)time period, as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall meet or confer by telephone within 20 Business Days in an attempt negotiate in good faith to resolve such disputeresolution of the disputed claim(s) for a period of not less than twenty (20) days after the response is provided. If such Persons the Indemnifying Party and the Indemnified Party are unable to resolve any such claim(s) within such time period, the dispute, either Indemnified Party may act shall be entitled to resolve pursue any legal remedies available to the dispute in accordance Indemnified Party against the Indemnifying Party with Section 32(brespect to the unresolved claim(s).

Appears in 2 contracts

Samples: Asset Purchase Agreement (Capital Growth Systems Inc /Fl/), Asset Purchase Agreement (Global Telecom & Technology, Inc.)

Indemnification Claim Procedure. Except as provided in Section 5.2.1 with respect to Third Party Claims, in the event of a claim made by a Buyer Indemnitee or a Seller Indemnitee (i) Any the “Indemnified Party”), the Indemnified Party shall promptly notify give prompt written notice to the other Party or Parties alleged to be obligated to indemnify (the “Indemnifying Party”) in writing of any relevant pending or threatened Claim by a third party (a “Third Party Claim”), describing which notice (an “Indemnification Certificate”) shall: (a) state that the Indemnified Party has paid or properly accrued or reasonably anticipates that it will have to pay or accrue Losses that are subject to indemnification by the Indemnifying Party pursuant to Section 5.1.1 or Section 5.1.2, as applicable, and (b) specify in reasonable detail the facts individual items and circumstances with respect to the subject matter amounts of the Claim; provided, however, that delay in providing such notice shall not release the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), except to the extent (and only to the extent) the delay actually and materially prejudices the Indemnifying Party’s ability to defend such Claim. (ii) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party by accepting its obligation to defend in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s fees and expenses) within 30 days of receiving notice of the Third Party Claim. If the Indemnifying Party declines, fails to respond to the notice, or fails to assume defense of the Third Party Claim within such 30-day period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoingLosses, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending date each such Third Party Claim) if the Third Party Claim seeks an order, injunction item was paid or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement ofproperly accrued, or the entry basis for such anticipated Liability, and a description of any judgment arising out the basis of or in connection with, any Third Party Claim, without the consent of any such Indemnified Party’s claim for indemnification; provided, however, that the failure to give prompt notice shall not relieve the applicable Indemnifying Party of its indemnification obligations under this Agreement except to the extent that the Indemnifying Party is materially prejudiced by any delay in receiving such notice. In the event that the Indemnifying Party agrees to or is determined to have an obligation to reimburse the Indemnified Party shall not withhold its consent if for Losses as provided in this Article 5, the Indemnifying Party shall, subject to the provisions of Section 5.3, promptly (but, in any event, within 30 days following such settlement agreement or judgment involves solely determination) pay such amount to the payment Indemnified Party by wire transfer of money, without any finding or admission of any violation of Law or admission of any wrongdoingimmediately available funds to the account specified in writing by the Indemnified Party. The Indemnifying Party shall pay or cause may defer making such payment if it objects in a written statement to be paid all amounts arising out of the claim made in the Indemnification Certificate and delivers such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify statement to the Indemnifying Party prior to the expiration of such 30-day period. An Indemnifying Party’s failure to object within such 30-day period to any claim set forth in an Indemnification Certificate shall be deemed to be the Indemnifying Party’s acceptance of, and waiver of any objections to, such claim. If an Indemnifying Party shall so object in writing of to any Claim for indemnification, describing claim or claims made in reasonable detail the basis for such Claim. Within 30 days following receipt of this noticeany Indemnification Certificate, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13. If the Indemnifying Party does not respond within 30 days, and the Indemnified Party shall send a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the Indemnified Party within such 5 Business Days after the receipt of such second notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall meet or confer by telephone within 20 Business Days in an attempt in good faith for a period of 20 days following the Indemnified Party’s receipt of such objection notice to resolve agree upon the respective rights of the parties with respect to each of such disputeclaims. If no such Persons are unable to resolve the disputeagreement can be reached after such 20-day period of good faith negotiation, either the Indemnifying Party or the Indemnified Party may act to resolve initiate Litigation for purposes of having the dispute matter settled in accordance with Section 32(b)the terms of this Agreement.

Appears in 2 contracts

Samples: Asset Purchase Agreement (Aralez Pharmaceuticals Inc.), Asset Purchase Agreement (Aralez Pharmaceuticals Inc.)

Indemnification Claim Procedure. Except as provided in Section 7.2.2 with respect to Third Party claims, in the event of a claim made by a Buyer Indemnitee or a Seller Indemnitee (i) Any the “Indemnified Party”), the Indemnified Party shall promptly notify give reasonably prompt written notice to the other Party or Parties alleged to be obligated to indemnify (the “Indemnifying Party”) in writing of any relevant pending or threatened Claim by a third party (a “Third Party Claim”), describing which notice (an “Indemnification Certificate”) shall: (a) state that the Indemnified Party has or reasonably anticipates having Losses that are subject to indemnification by the Indemnifying Party pursuant to Section 7.1.1 or Section 7.1.2, as applicable, and (b) specify in reasonable detail the facts individual items and circumstances with respect to the subject matter amounts of the Claim; provided, however, that delay in providing such notice shall not release the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), except to the extent (and only to the extent) the delay actually and materially prejudices the Indemnifying Party’s ability to defend such Claim. (ii) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party by accepting its obligation to defend in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s fees and expenses) within 30 days of receiving notice of the Third Party Claim. If the Indemnifying Party declines, fails to respond to the notice, or fails to assume defense of the Third Party Claim within such 30-day period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoingLosses, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending approximate date each such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement ofitem arose, or the entry basis for such anticipated Loss, and a description of any judgment arising out the basis of or in connection with, any Third Party Claim, without the consent of any such Indemnified Party’s claim for indemnification; provided, however, that the failure to give reasonably prompt notice shall not relieve the applicable Indemnifying Party of its indemnification obligations under this Agreement except to the extent that the Indemnifying Party is materially prejudiced by any delay in receiving such notice. In the event that the Indemnifying Party agrees to or is determined to have an obligation to reimburse the Indemnified Party shall not withhold its consent if for Losses as provided in this Article 7, the Indemnifying Party shall, subject to the provisions of Section 7.3, promptly (but, in any event, within 30 days) pay such settlement or judgment involves solely amount to the payment Indemnified Party by wire transfer of money, without any finding or admission of any violation of Law or admission of any wrongdoingimmediately available funds to the account specified in writing by the Indemnified Party. The Indemnifying Party shall pay or cause may defer making such payment if it objects in a written statement to be paid all amounts arising out of the claim made in the Indemnification Certificate and delivers such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify statement to the Indemnifying Party prior to the expiration of such 30-day period. An Indemnifying Party’s failure to object within such 30-day period to any claim set forth in an Indemnification Certificate shall be deemed to be the Indemnifying Party’s acceptance of, and waiver of any objections to, such claim. If an Indemnifying Party shall so object in writing of to any Claim for indemnification, describing claim or claims made in reasonable detail the basis for such Claim. Within 30 days following receipt of this noticeany Indemnification Certificate, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13. If the Indemnifying Party does not respond within 30 days, and the Indemnified Party shall send a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the Indemnified Party within such 5 Business Days after the receipt of such second notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall meet or confer by telephone within 20 Business Days in an attempt in good faith for a period of 20 days following the Indemnified Party’s receipt of such objection notice to resolve agree upon the respective rights of the parties with respect to each of such disputeclaims. If no such Persons are unable to resolve the disputeagreement can be reached after such 20-day period of good faith negotiation, either the Indemnifying Party or the Indemnified Party may act to resolve initiate Litigation for purposes of having the dispute matter settled in accordance with Section 32(b)the terms of this Agreement.

Appears in 2 contracts

Samples: Asset Purchase Agreement (Aegerion Pharmaceuticals, Inc.), Asset Purchase Agreement (Aegerion Pharmaceuticals, Inc.)

Indemnification Claim Procedure. (i) Any Indemnified Party shall promptly notify the Party or Parties alleged to be obligated to indemnify (the “Indemnifying Party”) in writing of any relevant pending or threatened Claim by a third party (a “Third Party Claim”), describing in reasonable detail the facts and circumstances with respect to the subject matter of the Claim; provided, however, that delay in providing such notice shall not release the Indemnifying Party from any of its obligations under Section 13(a15(a) or Section 13(b15(b), except to the extent (and only to the extent) the delay actually and materially prejudices the Indemnifying Party’s ability to defend such Claim. (ii) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party by accepting its obligation to defend in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s fees and expenses) within 30 days of receiving notice of the Third Party Claim. If the Indemnifying Party declines, fails to respond to the notice, or fails to assume defense of the Third Party Claim within such 30-day period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Party Claim, without the consent of any Indemnified Party; provided, however, that the Indemnified Party shall not withhold its consent if such settlement or judgment involves solely the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this notice, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 1315. If the Indemnifying Party does not respond within 30 days, the Indemnified Party shall send a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER PREPAID LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the Indemnified Party within such 5 Business Days after the receipt of such second notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a15(a) or Section 13(b15(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a15(a) or Section 13(b15(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall meet or confer by telephone within 20 Business Days in an attempt in good faith to resolve such dispute. If such Persons are unable to resolve the dispute, either Party may act to resolve the dispute in accordance with Section 32(b37(b).

Appears in 2 contracts

Samples: Master Prepaid Lease (Crown Castle International Corp), Master Prepaid Lease (At&t Inc.)

Indemnification Claim Procedure. (iExcept as provided in Section 11.3(b) Any Indemnified with respect to Third Party shall promptly notify the claims, upon receipt by a Party or Parties alleged to be obligated to indemnify provide indemnification under Section 11.1 or Section 11.2 of this Agreement, as applicable (the each such Party, an “Indemnifying Party”) in writing of any relevant pending or threatened Claim by a third party (a “Third Party Claim”), describing of a certificate (an “Indemnification Certificate”) signed by an NPS Indemnitee or a Takeda Indemnitee requesting indemnification as provided herein (the “Indemnified Party”): (i) stating that the Indemnified Party has paid or properly accrued or reasonably anticipates that it will have to pay or accrue Losses that are subject to indemnification by the Indemnifying Party pursuant to Section 11.1 or Section 11.2, as applicable, and (ii) specifying in reasonable detail the facts individual items and circumstances with respect to amounts of such Losses, the subject matter date each such item was paid or properly accrued, or the basis for such anticipated liability, and the nature of the Claim; providedmisrepresentations, howeverbreach of warranty, that delay in providing covenant or agreement to which such notice shall not release the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), except to the extent (and only to the extent) the delay actually and materially prejudices the Indemnifying Party’s ability to defend such Claim. (ii) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by the Indemnifying Party that item is reasonably acceptable to the Indemnified Party by accepting its obligation to defend in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s fees and expenses) within 30 days of receiving notice of the Third Party Claim. If the Indemnifying Party declines, fails to respond to the notice, or fails to assume defense of the Third Party Claim within such 30-day period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoingrelated, the Indemnifying Party shall not be entitled distribute to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party funds in defending an amount equal to such Third Party ClaimLosses within forty-five (45) days after delivery of the Indemnification Certificate; provided that no such payment or delivery shall be made if the Third Indemnifying Party Claim seeks shall object in a written statement to the claim made in the Indemnification Certificate and such statement shall have been delivered to the Indemnifying Party prior to the expiration of such forty-five- (45-) day period. An Indemnifying Party’s failure to object within such forty-five (45) day period to any claim set forth in an orderIndemnification Certificate shall be deemed to be the Indemnifying Party’s acceptance of, injunction and waiver of any objections to, such claim. In case an Indemnifying Party shall so object in writing to any claim or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from claims made in any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damagesIndemnification Certificate, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Party Claim, without the consent of any Indemnified Party; provided, however, that and the Indemnified Party shall not withhold its consent if such settlement or judgment involves solely the payment attempt in good faith for a period of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. twenty (iv20) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this noticesuch objection notice to agree upon the rights of the respective parties with respect to each of such claims. If no such agreement can be reached after such twenty (20) day period of good faith negotiation, either the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13. If may initiate litigation for purposes of having the Indemnifying Party does not respond within 30 days, the Indemnified Party shall send a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the Indemnified Party within such 5 Business Days after the receipt of such second notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall meet or confer by telephone within 20 Business Days in an attempt in good faith to resolve such dispute. If such Persons are unable to resolve the dispute, either Party may act to resolve the dispute matter settled in accordance with Section 32(b)the terms of this Agreement.

Appears in 2 contracts

Samples: Termination and Transition Agreement, Termination and Transition Agreement (NPS Pharmaceuticals Inc)

Indemnification Claim Procedure. (i) Any Indemnified Party shall promptly notify the Party or Parties alleged to be obligated to indemnify (the “Indemnifying Party”) in writing of any relevant pending or threatened Claim by a third party (a “Third Party Claim”), describing in reasonable detail the facts and circumstances with respect to the subject matter of the Claim; provided, however, that delay in providing such notice shall not release the Indemnifying Party from any of its obligations under Section 13(a15(a) or Section 13(b15(b), except to the extent (and only to the extent) the delay actually and materially prejudices the Indemnifying Party’s ability to defend such Claim. (ii) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party by accepting its obligation to defend in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s fees and expenses) within 30 days of receiving notice of the Third Party Claim. If the Indemnifying Party declines, fails to respond to the notice, or fails to assume defense of the Third Party Claim within such 30-day period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Party Claim, without the consent of any Indemnified Party; provided, however, that the Indemnified Party shall not withhold its consent if such settlement or judgment involves solely the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this notice, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13. If the Indemnifying Party does not respond within 30 days, the Indemnified Party shall send a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”15. If the Indemnifying Party does not notify the Indemnified Party party within such 5 Business Days after the receipt of such second notice 30-day period that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a15(a) or Section 13(b15(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a15(a) or Section 13(b15(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the ClaimClaim within such 30-day period, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party Party, at the Vice President level or higher, shall meet or confer by telephone within 20 Business Days in an attempt in good faith to resolve such dispute. If such Persons are unable to resolve the dispute, either Party may act to resolve the dispute in accordance with Section 32(b38(i) and Section 38(j).

Appears in 2 contracts

Samples: Master Prepaid Lease (T-Mobile US, Inc.), Master Prepaid Lease (Crown Castle International Corp)

Indemnification Claim Procedure. Except as provided in Section 5.2.2 with respect to Third Party Claims, in the event of a claim made by a Buyer Indemnitee or a Seller Indemnitee (i) Any the “Indemnified Party”), the Indemnified Party shall promptly notify give reasonably prompt written notice to the other Party or Parties alleged to be obligated to indemnify (the “Indemnifying Party”) in writing of any relevant pending or threatened Claim by a third party (a “Third Party Claim”), describing which notice (an “Indemnification Certificate”) shall: (a) state that the Indemnified Party has paid or properly accrued or reasonably anticipates that it will have to pay or accrue Losses that are subject to indemnification by the Indemnifying Party pursuant to Section 5.1.1 or Section 5.1.2, as applicable, and (b) specify in reasonable detail the facts individual items and circumstances with respect to the subject matter amounts of the Claim; provided, however, that delay in providing such notice shall not release the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), except to the extent (and only to the extent) the delay actually and materially prejudices the Indemnifying Party’s ability to defend such Claim. (ii) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party by accepting its obligation to defend in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s fees and expenses) within 30 days of receiving notice of the Third Party Claim. If the Indemnifying Party declines, fails to respond to the notice, or fails to assume defense of the Third Party Claim within such 30-day period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoingLosses, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending date each such Third Party Claim) if the Third Party Claim seeks an order, injunction item was paid or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement ofproperly accrued, or the entry basis for such anticipated Liability, and a description of any judgment arising out the basis of or in connection with, any Third Party Claim, without the consent of any such Indemnified Party’s claim for indemnification; provided, however, that the failure to give reasonably prompt notice shall not relieve the applicable Indemnifying Party of its indemnification obligations under this Agreement except to the extent that the Indemnifying Party is materially prejudiced by any delay in receiving such notice. In the event that the Indemnifying Party agrees to or is determined to have an obligation to reimburse the Indemnified Party shall not withhold its consent if for Losses as provided in this Article 5, the Indemnifying Party shall, subject to the provisions of Section 5.3, promptly (but, in any event, within 30 days following such settlement agreement or judgment involves solely determination) pay such amount to the payment Indemnified Party by wire transfer of money, without any finding or admission of any violation of Law or admission of any wrongdoingimmediately available funds to the account specified in writing by the Indemnified Party. The Indemnifying Party shall pay or cause may defer making such payment if it objects in a written statement to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability claim made in respect of such Third Party Claim. the Indemnification Certificate (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing specifying in reasonable detail the individual items and amounts to which it objects and a reasonably detailed description of the basis for of all such Claimobjections) and delivers such statement to the Indemnifying Party prior to the expiration of such 30-day period. Within 30 days following receipt of this noticeIf an Indemnifying Party shall so object in writing to any claim or claims made in any Indemnification Certificate in accordance with the immediately preceding sentence, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13. If the Indemnifying Party does not respond within 30 days, and the Indemnified Party shall send a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the Indemnified Party within such 5 Business Days after the receipt of such second notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall meet or confer by telephone within 20 Business Days in an attempt in good faith for a period of 20 days following the Indemnified Party’s receipt of such objection notice to resolve agree upon the respective rights of the Parties with respect to each of such disputeclaims. If no such Persons are unable to resolve the disputeagreement can be reached after such 20-day period of good faith negotiation, either the Indemnifying Party or the Indemnified Party may act to resolve initiate Litigation for purposes of having the dispute matter settled in accordance with Section 32(b)the terms of this Agreement.

Appears in 2 contracts

Samples: Asset Purchase Agreement, Asset Purchase Agreement (Ani Pharmaceuticals Inc)

Indemnification Claim Procedure. (ia) Any Promptly after becoming aware of the existence of any potential matter that a Purchaser Indemnified Party shall promptly notify or Company Stockholder Indemnified Party, as applicable (the “Indemnified Party”), acting in good faith, reasonably believes will entitle the Indemnified Party to indemnification from the Company Stockholders or Parties alleged to be obligated to indemnify the Purchaser, respectively (the “Indemnifying Party”), under this Article VIII, the Indemnified Party shall promptly provide to Indemnifying Party notice describing the the matter in reasonable detail, including the nature of the claim, the basis for the indemnification obligation and the Losses resulting therefrom (an “Indemnity Claim Notice”); provided, however, that the Stockholder Representative shall be deemed to be the Company Stockholder Indemnified Parties (whether they are the Indemnified Party or the Indemnifying Party) in writing for purposes of sending and receiving Indemnity Claim Notices and Indemnity Claim Responses and otherwise taking actions pursuant to this Section 8.4 and Section 8.5. To the extent that any relevant pending such matter relates to a Claim or threatened Proceeding by any Person other than: (i) a party to this Agreement; (ii) a Purchaser Indemnified Party; or (iii) a Company Stockholder Indemnified Party (a “Third Party”), such Claim by a third party (or Proceeding is referred to herein as a “Third Party Claim”), describing in reasonable detail which is governed by Section 8.5. No delay on the facts and circumstances with respect to the subject matter part of the Claim; providedIndemnified Party in giving the Indemnifying Party an Indemnity Claim Notice shall limit or reduce the Indemnified Party’s right to indemnification hereunder, however, that delay in providing such notice shall not release nor relieve the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b)this Article VIII, except unless (and then only to the extent that) the Indemnifying Party is materially prejudiced thereby. (and only b) For claims for indemnification under this Article VIII other than those relating to Third Party Claims, the Indemnifying Party shall have twenty (20) Business Days after its receipt of the Indemnity Claim Notice to respond to the extentclaim(s) the delay actually and materially prejudices described therein (an “Indemnity Claim Response”), which shall set forth, in reasonable detail, the Indemnifying Party’s ability to defend such Claim. (iiobjection(s) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party by accepting claim(s) and its obligation to defend in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s fees and expenses) within 30 days of receiving notice of the Third Party Claimbases for such objection(s). If the Indemnifying Party declines, fails to respond to the notice, or fails to assume defense of the Third Party provide an Indemnity Claim within Response with such 30-day time period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not will be entitled deemed to assume have conceded the defense of any Third Party claim(s) set forth in the Indemnity Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Party Claim, without the consent of any Indemnified Party; provided, however, that the Indemnified Party shall not withhold its consent if such settlement or judgment involves solely the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this notice, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13Notice. If the Indemnifying Party does not respond within 30 days, the Indemnified Party shall send a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the Indemnified Party provides an Indemnity Claim Response within such 5 Business Days after the receipt of such second notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) or Section 13(b)time period, as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall meet or confer by telephone within 20 negotiate the resolution of the claim(s) for a period of not fewer than twenty (20) Business Days in an attempt in good faith to resolve such disputeafter the Indemnity Claim Response is provided. If such Persons the Indemnifying Party and the Indemnified Party are unable to resolve any such claim(s) within such time period, the disputeIndemnified Party shall be entitled to pursue any legal remedies available to the Indemnified Party against the Indemnifying Party with respect solely to the unresolved claim(s), either Party may act subject to resolve Indemnity Threshold Amount, the dispute in accordance with Section 32(b)Overall Company Stockholder Indemnity Cap, the Individual Company Stockholder Indemnity Cap and the other provisions of this Article VIII, as applicable.

Appears in 1 contract

Samples: Merger Agreement (Earthlink Inc)

Indemnification Claim Procedure. (ia) Any Promptly after obtaining knowledge of any matter that a Purchaser Indemnified Party shall promptly notify the or a Seller Indemnified Party, acting in good faith, reasonably believes will entitle such Purchaser Indemnified Party or Parties alleged Seller Indemnified Party (in such capacity, an “Indemnified Party”) to indemnification under this Article VI from any Person who would be obligated to indemnify such Indemnified Party if the claim is indemnifiable hereunder (such obligated Person, the “Indemnifying Party”) ), such Indemnified Party shall promptly provide to Seller, if the Indemnified Party is a Purchaser Indemnified Party, or to Purchaser, if the Indemnified Party is a Seller Indemnified Party, notice describing the matter in writing reasonable detail, including the nature of any relevant pending or threatened Claim by a third party the claim, the basis for the indemnification obligation and the Losses resulting therefrom (a “Third Party Notice of Claim”), describing in reasonable detail the facts and circumstances with respect to the subject matter of the Claim; provided, however, that delay in providing such notice the failure to timely provide a Notice of Claim hereunder shall not release the relieve any Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), the obligation to indemnify such Indemnified Party except to the extent (and only that such Indemnified Party’s failure to the extent) the provide or delay in providing a Notice of Claim actually and materially prejudices the Indemnifying Party’s ability to defend against or contest or resolve such Claimmatter. (iib) The For claims for indemnification under this Article VI other than those relating to Third Party Claims, during the period of thirty (30) Business Days after delivery of the Notice of Claim, the Indemnifying Party may assume and control deliver to the defense Indemnified Party who delivered such Notice of any Third Claim a response (a “Response Notice”) in which the Indemnifying Party (i) agrees that the full amount of Losses stated in the Notice of Claim with counsel selected is owed to such Indemnified Party (in which case such Response Notice shall be accompanied by a payment to the Indemnified Party of such amount by the Indemnifying Party that by wire transfer of immediately available funds or, if payment is reasonably acceptable to be made from the Escrow Deposit, express authorization to the Escrow Agent (in accordance with the Escrow Agreement) to make immediate payment of such amount to the Indemnified Party by accepting its obligation to defend in writing and agreeing to pay defense costs from the Escrow Deposit), (including reasonable out-of-pocket attorney’s fees and expensesii) within 30 days of receiving notice agrees that part (but not all) of the Third amount of Losses stated in the Notice of Claim is owed to such Indemnified Party (in which case such Response Notice shall be accompanied by a payment to the Indemnified Party of such agreed amount by the Indemnifying Party by wire transfer of immediately available funds or, if payment is to be made from the Escrow Deposit, express authorization to the Escrow Agent (in accordance with the Escrow Agreement) to make immediate payment of such agreed amount to the Indemnified Party from the Escrow Deposit) or (iii) asserts that no part of the amount of Losses stated in the Notice of Claim is owed to such Indemnified Party. Unless the Indemnifying Party agrees in such Response Notice that the full amount of Losses stated in the Notice of Claim is owed to such Indemnified Party, such Response Notice shall set forth, in reasonable detail, the Indemnifying Party’s objections to the claims and its basis for such objections. If the Indemnifying Party fails to provide such a Response Notice to the Indemnified Party who delivered the related Notice of Claim within such thirty (30) Business Day period, the Indemnifying Parties shall be deemed to have accepted to all of the claims set forth in the Notice of Claim. If the Indemnifying Party declines, fails provides a Response Notice within such thirty (30) Business Day period and such Response Notice objects to respond to the notice, or fails to assume defense any of the Third Party Claim within such 30-day period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate claims set forth in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status Notice of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Party Claim, without the consent of any Indemnified Party; provided, however, that the Indemnified Party shall not withhold its consent if such settlement or judgment involves solely the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this notice, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13. If the Indemnifying Party does not respond within 30 days, the Indemnified Party shall send a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the Indemnified Party within such 5 Business Days after the receipt of such second notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall meet or confer by telephone within 20 negotiate the resolution of the claim(s) for a period of not less than thirty (30) Business Days in an attempt in good faith after such Response Notice is delivered to resolve such disputeIndemnified Party. If such Persons the Indemnified Party and the Indemnifying Party are unable to resolve all such claims within such time period, the dispute, either Indemnified Party or the Indemnifying Party may act thereafter pursue any legal remedies available to resolve it with respect solely to the dispute in accordance with Section 32(b)unresolved claims, subject, to the extent applicable, to the Indemnification Threshold, the Indemnification Cap and the other provisions of this Article VI.

Appears in 1 contract

Samples: Asset Purchase Agreement (Depomed Inc)

Indemnification Claim Procedure. Except as provided in SECTION 6.3(a) above, in order to seek indemnification under this ARTICLE VI, an Indemnified Party shall give written notification (a "Claim Notice") to the Indemnifying Party pursuant to the procedure set forth in Section 4(c) of the Escrow Agreement. In the event the Escrow Agreement has terminated and the Indemnifying Party disputes the claim by the Indemnified Party, the Indemnifying Party shall deliver to the Indemnified Party a written response (the "Response") in which the Indemnifying Party shall: (i) Any agree that the Indemnified Party shall promptly notify is entitled to receive part, but not all, of the Party or Parties alleged to be obligated to indemnify Damages in dispute (the “Indemnifying Party”) "Claimed Amount"), in writing of any relevant pending or threatened Claim which case the Response shall be accompanied by a third party (a “Third Party Claim”), describing in reasonable detail the facts and circumstances with respect to the subject matter of the Claim; provided, however, that delay in providing such notice shall not release the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), except to the extent (and only to the extent) the delay actually and materially prejudices the Indemnifying Party’s ability to defend such Claim. (ii) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected payment by the Indemnifying Party that is reasonably acceptable to the Indemnified Party by accepting its obligation to defend in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s fees and expenses) within 30 days of receiving notice of the Third Damages not in dispute (the "Agreed Amount"), by check or by wire transfer or (ii) dispute that the Indemnified Party Claimis entitled to receive any of the Claimed Amount. If the Indemnifying Party declinesin the Response disputes its liability for all or part of the Claimed Amount, fails the Indemnifying Party and the Indemnified Party shall follow the procedures set forth in this SECTION 6.3(b) for the resolution of such dispute (a "Dispute"). During the sixty (60)-day period following the delivery of a Response that reflects a Dispute, the Indemnifying Party and the Indemnified Party shall use good faith efforts to respond resolve the Dispute. If the Dispute is not resolved within such sixty (60)-day period, the Indemnifying Party and the Indemnified Party shall discuss in good faith the submission of the Dispute to a mutually acceptable alternative dispute resolution procedure (which may be non-binding or binding upon the parties, as they agree in advance) (the "ADR Procedure"). In the event the Indemnifying Party and the Indemnified Party agree upon an ADR Procedure, such parties shall, in consultation with the chosen dispute resolution service (the "ADR Service"), promptly agree upon a format and timetable for the ADR Procedure, agree upon the rules applicable to the noticeADR Procedure, and promptly undertake the ADR Procedure. The provisions of this SECTION 6.3(b) shall not obligate the Indemnifying Party and the Indemnified Party to pursue an ADR Procedure or fails prevent either such party from pursuing the Dispute in a court of competent jurisdiction; PROVIDED that, if the Indemnifying Party and the Indemnified Party agree to assume defense of pursue an ADR Procedure, neither the Third Indemnifying Party Claim within such 30-day period, then nor the Indemnified Party may control commence litigation or seek other remedies with respect to the defense and Dispute prior to the completion of such ADR Procedure. Any ADR Procedure undertaken by the Indemnifying Party and the Indemnified Party shall pay be considered a compromise negotiation for purposes of federal and state rules of evidence, and all reasonable out-of-pocket defense costs statements, offers, opinions and disclosures (whether written or oral) made in the course of the ADR Procedure by or on behalf of the Indemnifying Party, the Indemnified Party or the ADR Service shall be treated as incurred confidential and, where appropriate, as privileged work product. Such statements, offers, opinions and disclosures shall not be discoverable or admissible for any purposes in any litigation or other proceeding relating to the Dispute (provided that this sentence shall not be construed to exclude from discovery or admission any matter that is otherwise discoverable or admissible). The fees and expenses of any ADR Service used by the Indemnifying Party and the Indemnified Party shall be shared equally by the Indemnifying Party and the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform Notwithstanding the other provisions of this SECTION 6.3, if a third party asserts (other than by means of a lawsuit) that an Indemnified Party about the status of the defense. The Parties shall cooperate is liable to such third party for a monetary or other obligation that may constitute or result in good faith in the defense of any Third Damages for which such Indemnified Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not may be entitled to assume the defense of any Third Party Claim (indemnification pursuant to this ARTICLE VI, and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determinesdetermines that it has a valid business reason to fulfill such obligation, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If then (i) such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Indemnified Party shall be entitled to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Party Claimsatisfy such obligation, without the consent of any Indemnified Party; provided, however, that the Indemnified Party shall not withhold its consent if such settlement or judgment involves solely the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this notice, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13. If the Indemnifying Party does not respond within 30 days, the Indemnified Party shall send a second prior notice to or consent from the Indemnifying Party, marked at the top (ii) such Indemnified Party may subsequently make a claim for indemnification in bold lettering accordance with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE provisions of this ARTICLE VI, and (5iii) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the such Indemnified Party within shall be reimbursed, in accordance with the provisions of this ARTICLE VI, for any such 5 Business Days after the receipt of such second notice that the Indemnifying Party disputes its liability Damages for which it is entitled to indemnification pursuant to this ARTICLE VI (subject to the Indemnified Party under Section 13(a) or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability right of the Indemnifying Party to dispute the Indemnified Party's entitlement to indemnification, or the amount for which it is entitled to indemnification, under Section 13(a) or Section 13(bthe terms of this ARTICLE VI). For purposes of this SECTION 6.3 and the last two sentences of SECTION 6.4, as applicableif the NRI Common Shareholders comprise the Indemnifying Party, and any references to the Indemnifying Party shall pay the amount of such Claim (except provisions relating to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify make or a right to receive any payments provided for in SECTION 6.3 or 6.4) shall be deemed to refer to the ClaimShareholder Representative. The Shareholder Representative shall have full power and authority on behalf of each NRI Common Shareholder to take any and all actions on behalf of, it execute any and all instruments on behalf of, and execute or waive any and all rights of, the NRI Common Shareholders under this ARTICLE VI. The Shareholder Representative shall explain in reasonable detail the basis have no liability to any NRI Common Shareholder for the dispute. If the Parties disagree any action taken or omitted on the scope or existence of an indemnification obligation for the Claim, management representatives behalf of the Indemnified Party and the Indemnifying Party shall meet or confer by telephone within 20 Business Days in an attempt in good faith NRI Common Shareholders pursuant to resolve such dispute. If such Persons are unable to resolve the dispute, either Party may act to resolve the dispute in accordance with Section 32(b)this ARTICLE VI.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Purchasepro Com Inc)

Indemnification Claim Procedure. (i) Any If any Purchaser Indemnified Party shall promptly notify or Seller Indemnified Party, as applicable, in such capacity (the “Indemnified Party”), learns of any matter that it believes will entitle the Indemnified Party to indemnification from the Purchaser, Purchaser Europe or Parties alleged to be obligated to indemnify either or both of the Sellers, as applicable, in such capacity (the “Indemnifying Party”) under this Article VII, the Indemnified Party shall provide to Indemnifying Party notice describing the matter in writing reasonable detail, including the nature of any relevant pending or threatened Claim by a third party the claim, the basis for the indemnification obligation and, to the extent reasonably estimable, the estimated Losses resulting therefrom (a “Third Party Notice of Claim”). The Indemnifying Party shall have ten (10) Business Days after its receipt of the Notice of Claim to respond to the claim(s) described therein in a written notice to the Indemnified Party (a “Dispute Notice”) setting forth, describing in reasonable detail the facts and circumstances with respect to the subject matter of the Claim; provideddetail, however, that delay in providing such notice shall not release the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), except to the extent (and only to the extent) the delay actually and materially prejudices the Indemnifying Party’s ability to defend such Claim. (iiobjection(s) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party by accepting claim(s) and its obligation to defend in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s fees and expenses) within 30 days of receiving notice of the Third Party Claimbases for such objection(s). If the Indemnifying Party declines, fails to respond to the notice, or fails to assume defense of the Third Party Claim within provide a Dispute Notice with such 30-day time period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not will be entitled deemed to assume have conceded the defense claim(s) set forth in the Notice of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Party Claim, without the consent of any Indemnified Party; provided, however, that the Indemnified Party shall not withhold its consent if such settlement or judgment involves solely the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this notice, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13. If the Indemnifying Party does not respond within 30 daysdispute, in its Dispute Notice, all of he claims set forth in the corresponding Notice of Claim, the Indemnified Indemnifying Party shall send a second notice be deemed to the Indemnifying Party, marked at the top have conceded any claims to which it has not disputed in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”such Dispute Notice. If the Indemnifying Party does not notify the Indemnified Party provides a Dispute Notice within such 5 Business Days after the receipt of such second notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) or Section 13(b)time period, as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall meet or confer by telephone within 20 Business Days in an attempt negotiate in good faith to resolve such disputeresolution of the disputed claim(s) for a period of not less than twenty (20) Business Days after the response is provided. If such Persons the Indemnifying Party and the Indemnified Party are unable to resolve any such claim(s) within such time period, the disputeIndemnified Party shall be entitled to pursue any legal remedies available to the Indemnified Party against the Indemnifying Party with respect to the unresolved claim(s), either Party may act subject to resolve Seller Indemnification Deductible, the dispute Seller Indemnification Cap, the Purchaser Indemnification Deductible, the Purchaser Indemnification Cap and the other provisions of this Article VII, in accordance with Section 32(b)each case to the extent applicable.

Appears in 1 contract

Samples: Purchase Agreement (Global Telecom & Technology, Inc.)

Indemnification Claim Procedure. Except as provided in Section ‎7.2.2 with respect to Third Party claims, in the event of a claim made by a Buyer Indemnitee or a Seller Indemnitee (i) Any the “Indemnified Party”), the Indemnified Party shall promptly notify give reasonably prompt written notice to the other Party or Parties alleged to be obligated to indemnify (the “Indemnifying Party”) in writing of any relevant pending or threatened Claim by a third party (a “Third Party Claim”), describing which notice (an “Indemnification Certificate”) shall: (a) state that the Indemnified Party has paid or properly accrued or in good faith anticipates that it will have to pay or accrue Losses that are subject to indemnification by the Indemnifying Party pursuant to Section ‎7.1.1 or Section ‎7.1.2, as applicable, and (b) specify in reasonable detail the facts and circumstances with respect to supporting the subject matter of the Claim; provided, however, that delay in providing such notice shall not release the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), except Indemnified Party’s claim for indemnification (to the extent (known) and only contain a non-binding preliminary, good faith estimate of the amount to the extent) the delay actually and materially prejudices the Indemnifying Party’s ability to defend such Claim. (ii) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable to which the Indemnified Party by accepting its obligation claims to defend in writing and agreeing to pay defense costs be entitled (including reasonable out-of-pocket attorney’s fees and expenses) within 30 days of receiving notice of the Third Party Claim. If the Indemnifying Party declines, fails to respond to the notice, or fails to assume defense of the Third Party Claim within such 30-day period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Party Claim, without the consent of any Indemnified Partyextent known); provided, however, that the Indemnified Party failure to give reasonably prompt notice shall not withhold its consent if such settlement or judgment involves solely relieve the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The applicable Indemnifying Party shall pay of its indemnification obligations under this Agreement except to the extent that the Indemnifying Party is materially prejudiced by any delay in receiving such notice. In the event that the Indemnifying Party agrees to or cause is determined to be paid all amounts arising out of such settlement have an obligation to indemnify or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, reimburse the Indemnified Party promptly shall notify the Indemnifying Party for Losses as provided in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this noticeArticle 7, the Indemnifying Party shall respondshall, stating whether it disputes subject to the existence or scope provisions of an obligation Section 7.2.2, promptly (but in any event, within [***] days of receipt of the Indemnification certificate) pay such amount to indemnify the Indemnified Party under this Section 13by wire transfer of immediately available funds to the account specified in writing by the Indemnified Party. If the Indemnifying Party does not respond within 30 daysobjects to all or a portion of the Indemnified Party’s claim made in the Indemnification Certificate, the Indemnifying Party will notify the Indemnified Party shall send of such objection by delivering a second notice written statement (the “Objection Notice”) to the Indemnifying Party within [***] days following receipt of the Indemnification Certificate (the “Response Period”). The Objection Notice shall indicate whether the Indemnifying Party objects to all or only a portion of the claim specified in the Indemnification Certificate and shall specify in reasonable detail the facts and circumstances supporting the Indemnifying Party, marked at the top ’s basis and reasons for such objection. An Indemnifying Party’s failure to deliver an Objection Notice in bold lettering accordance with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” provisions of this Section ‎7.2.1 within the Response Period to any claim set forth in an Indemnification Certificate shall be deemed to be the Indemnifying Party’s acceptance of, and waiver of any objections to, such claim and the envelope containing Indemnifying Party shall be deemed to have agreed that an amount equal to the request must be marked “PRIORITY”full claimed amount specified in the Indemnification Certificate is owed to the Indemnified Party. If the Indemnifying Party in its Objection Notice objects only to a portion of the claim set forth in the Indemnification Certificate (the amount of Losses claimed in the Indemnification Certificate to which the Indemnifying Party does not notify object shall be referred to herein as the “Agreed Amount”), then such Indemnifying Party shall, within [***] Business Days following the delivery of such Objection Notice pay the Agreed Amount to the Indemnified Party. If an Indemnifying Party shall provide Objection Notice in accordance with the provisions of this Section ‎7.2.1, the Indemnifying Party and the Indemnified Party within such 5 Business Days after the receipt of such second notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall meet or confer by telephone within 20 Business Days in an attempt in good faith for a period of [***] days following the Indemnified Party’s receipt of the Objection Notice to resolve agree upon the rights of the respective parties with respect to each of such disputeclaims. If no such Persons are unable to resolve the disputeagreement can be reached after such [***]-day period of good faith negotiation, either the Indemnifying Party or the Indemnified Party may act to resolve initiate Litigation for purposes of having the dispute matter settled in accordance with Section 32(b)the terms of this Agreement.

Appears in 1 contract

Samples: Asset Purchase Agreement (Forest Laboratories Inc)

Indemnification Claim Procedure. (i) Any Indemnified Party shall promptly notify the Party or Parties alleged to be obligated to indemnify (the “Indemnifying Party”) in writing of any relevant pending or threatened Claim by a third party (a “Third Party Claim”), describing in reasonable detail the facts and circumstances with respect to the subject matter of the Claim; provided, however, that delay in providing such notice shall not release the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), except to the extent (and only to the extent) the delay actually and materially prejudices the Indemnifying Party’s ability to defend such Claim. (ii) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party by accepting its obligation to defend in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s fees and expenses) within 30 days of receiving notice of the Third Party Claim. If the Indemnifying Party declines, fails to respond to the notice, or fails to assume defense of the Third Party Claim within such 30-day period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Party Claim, without the consent of any Indemnified Party; provided, however, that the Indemnified Party shall not withhold its consent if such settlement or judgment involves solely the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this notice, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13. If the Indemnifying Party does not respond within 30 days, the Indemnified Party shall send a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the Indemnified Party party within such 5 Business Days after the receipt of such second notice 30-day period that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the ClaimClaim within such 30-day period, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party Party, at the Vice President level or higher, shall meet or confer by telephone within 20 Business Days in an attempt in good faith to resolve such dispute. If such Persons are unable to resolve the dispute, either Party may act to resolve the dispute in accordance with Section 32(bSections 34(i) and 34(j).

Appears in 1 contract

Samples: Sale Site Master Lease Agreement (Crown Castle International Corp)

Indemnification Claim Procedure. Except as provided in Section 8.2.2 with respect to Third Party Claims, in the event of a claim made by a Buyer Indemnitee or a Seller Indemnitee (i) Any the “Indemnified Party”), the Indemnified Party shall promptly notify give reasonably prompt written notice to the Party or Parties alleged to that may be obligated to indemnify such Indemnified Party pursuant to Section 8.1, (the “Indemnifying Party”), which notice (an “Indemnification Certificate”) shall: (a) state that the Indemnified Party has paid or properly accrued or in good faith anticipates that it will have to pay or accrue Losses that are subject to indemnification by the Indemnifying Party pursuant to Section 8.1.1 or Section 8.1.2, as applicable, and (b) specify in reasonable detail the individual items and amounts of such Losses (or a good faith estimate of the amount of such Losses to the extent the actual amount of Losses are unknown at such time), the date each such item was paid or properly accrued, or the basis for such anticipated Liability, and a description of the basis of such Indemnified Party’s claim for indemnification; provided, however, that the failure to give reasonably prompt notice shall not relieve the applicable Indemnifying Party of its indemnification obligations under this Agreement except to the extent that the Indemnifying Party is materially prejudiced by any delay in receiving such notice. In the event that the Indemnifying Party agrees to or is determined to have an obligation to indemnify or reimburse the Indemnified Party for Losses as provided in this Article 8, the Indemnifying Party shall, subject to the provisions of Section 8.2.2, promptly (but, in any event, within 30 days following such agreement or determination) pay such amount to the Indemnified Party by wire transfer of immediately available funds to the account specified in writing by the Indemnified Party. If the Indemnifying Party objects to all or a portion of any relevant pending the Indemnified Party’s claim made in the Indemnification Certificate, the Indemnifying Party (i) will notify the Indemnified Party of such objection by delivering a written statement (the “Objection Notice”) to the Indemnifying Party within 30 days following receipt of the Indemnification Certificate and (ii) may defer making such payment, subject to delivery of an Objection Notice pursuant to the preceding clause (i). The Objection Notice shall indicate whether the Indemnifying Party objects to all or threatened Claim by only a third party (a “Third Party Claim”), describing portion of the claim specified in the Indemnification Certificate and shall specify in reasonable detail the facts and circumstances with respect to the subject matter of the Claim; provided, however, that delay in providing such notice shall not release the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), except to the extent (and only to the extent) the delay actually and materially prejudices supporting the Indemnifying Party’s ability to defend basis and reasons for such Claim. (ii) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party by accepting its obligation to defend in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s fees and expenses) within 30 days of receiving notice of the Third Party Claimobjection. If the Indemnifying Party declines, fails in its Objection Notice objects only to respond to the notice, or fails to assume defense of the Third Party Claim within such 30-day period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief a portion of the Third Party Claim can be so separated from that for money damages, claim set forth in the Indemnifying Party shall be entitled Indemnification Certificate (the amount of Losses claimed in the Indemnification Certificate to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Party Claim, without the consent of any Indemnified Party; provided, however, that the Indemnified Party shall not withhold its consent if such settlement or judgment involves solely the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this notice, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13. If which the Indemnifying Party does not respond object shall be referred to herein as the “Agreed Amount”), then, subject to the limitations of this Article 8, such Indemnifying Party shall, within 30 days10 Business Days following the delivery of such Objection Notice pay the Agreed Amount to the Indemnified Party. If an Indemnifying Party shall provide an Objection Notice in accordance with the provisions of this Section 8.2.1, the Indemnifying Party and the Indemnified Party shall send a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the Indemnified Party within such 5 Business Days after the receipt of such second notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall meet or confer by telephone within 20 Business Days in an attempt in good faith for a period of 20 days following the Indemnified Party’s receipt of the Objection Notice to resolve agree upon the rights of the respective parties with respect to each of such disputeclaims. If no such Persons are unable to resolve the disputeagreement can be reached after such 20-day period of good faith negotiation, either the Indemnifying Party or the Indemnified Party may act to resolve the dispute submit such Dispute for resolution in accordance with Section 32(b)10.1.2.

Appears in 1 contract

Samples: Stock and Asset Purchase Agreement (Bausch & Lomb Corp)

Indemnification Claim Procedure. (ia) Any Promptly after obtaining knowledge of any matter that a Parent Indemnified Party shall promptly notify the or a Company Indemnified Party, acting in good faith, reasonably believes will entitle such Parent Indemnified Party or Parties alleged Company Indemnified Party (in such capacity, an “Indemnified Party”) to indemnification under this Article VIII from any Person who would be obligated to indemnify such Indemnified Party if the claim is indemnifiable hereunder (such obligated Person, the “Indemnifying Party”) ), such Indemnified Party shall promptly provide to the Stockholder Representative, if the Indemnified Party is a Parent Indemnified Party, or to Parent, if the Indemnified Party is a Company Indemnified Party (in writing this capacity, the “Indemnifying Party Representative”), written notice describing the matter in reasonable detail, including the nature of any relevant pending or threatened Claim by a third party the claim, the basis for the indemnification obligation and the Losses resulting therefrom (a “Third Party Notice of Claim”), describing in reasonable detail the facts and circumstances with respect to the subject matter of the Claim; provided, however, that delay in providing such notice the failure to timely provide a Notice of Claim hereunder shall not release the relieve any Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), the obligation to indemnify such Indemnified Party except to the extent (and only that such Indemnified Party’s failure to the extent) the provide or delay in providing a Notice of Claim actually and materially prejudices the Indemnifying Party’s ability to defend against or contest or resolve such Claimmatter. (iib) The Indemnifying Party may assume and control the defense of any For claims for indemnification under this Article VIII other than those relating to Third Party Claim with counsel selected by Claims, during the period of fifteen (15) Business Days after delivery of the Notice of Claim, the Indemnifying Party that is reasonably acceptable Representative may deliver to the Indemnified Party by accepting its obligation who delivered such Notice of Claim a response (a “Response Notice”) in which the Indemnifying Party Representative (i) agrees that the full amount of Losses stated in the Notice of Claim is owed to defend in writing and agreeing to pay defense costs such Indemnified Party, (including reasonable out-of-pocket attorney’s fees and expensesii) within 30 days of receiving notice agrees that part (but not all) of the Third amount of Losses stated in the Notice of Claim is owed to such Indemnified Party Claimor (iii) asserts that no part of the amount of Losses stated in the Notice of Claim is owed to such Indemnified Party. Unless the Indemnifying Party Representative agrees in such Response Notice that the full amount of Losses stated in the Notice of Claim is owed to such Indemnified Party, such Response Notice shall set forth, in reasonable detail, the Indemnifying Party Representative’s objections to the claims and its basis for such objections. If the Indemnifying Party declines, Representative fails to respond provide such a Response Notice to the notice, or fails to assume defense Indemnified Party who delivered the related Notice of the Third Party Claim within such 30-day fifteen (15) Business Day period, then the Indemnifying Parties shall be deemed to have agreed that the full amount of Losses set forth in the Notice of Claim is owed to such Indemnified Party and the Indemnifying Party Representative or the Indemnified Party may control thereafter pursue any legal remedies available to it under this Agreement with respect to the defense claims set forth in such Notice of Claim, subject, to the extent applicable, to the Basket, the Indemnification Cap and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Party Claim, without the consent of any Indemnified Party; provided, however, that the Indemnified Party shall not withhold its consent if such settlement or judgment involves solely the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt provisions of this notice, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13Article VIII. If the Indemnifying Party does not respond within 30 days, the Indemnified Party shall send Representative provides a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the Indemnified Party Response Notice within such 5 fifteen (15) Business Days after the receipt of Day period and such second notice that the Indemnifying Party disputes its liability Response Notice objects to the Indemnified Party under Section 13(a) or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability any of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, claims set forth in the case Notice of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party Representative, as the case may be, shall meet or confer by telephone within 20 negotiate the resolution of the claim(s) for a period of not less than fifteen (15) Business Days in an attempt in good faith after such Response Notice is delivered to resolve such disputeIndemnified Party. If such Persons the Indemnified Party and the Indemnifying Party Representative are unable to resolve all such claims within such time period, the disputeIndemnified Party or Indemnifying Party Representative may thereafter pursue any legal remedies available to it with respect solely to the unresolved claims, either Party may act subject, to resolve the dispute in accordance with Section 32(b)extent applicable, to the Basket, the Indemnification Cap and the other provisions of this Article VIII.

Appears in 1 contract

Samples: Merger Agreement (Cinedigm Corp.)

Indemnification Claim Procedure. (ia) Any If any Purchaser Indemnified Party shall promptly notify or Company Indemnified Party, as applicable (in the capacity as a Person seeking indemnification under this Article VIII, the “Indemnified Party”), obtains actual knowledge of any matter not involving a Third Party Claim that the Indemnified Party reasonably believes will entitle the Indemnified Party to indemnification from Purchaser or Parties alleged to be obligated to indemnify the Equityholders under this Article VIII (in the capacity as a Person against whom indemnification is sought under this Article VIII, the “Indemnifying Party”) in writing of any relevant pending or threatened Claim by ), the Indemnified Party shall promptly thereafter deliver to the Indemnifying Party a third party notice thereof (a “Third Party Notice of Claim”), ) describing such matter in reasonable detail the facts and circumstances with respect and, to the subject matter of extent reasonably estimable, the Claimestimated Losses resulting therefrom; provided, however, that delay in providing any failure to give such notice notification on a timely basis or to provide any particular details therein shall not release relieve the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), obligation to indemnify any Indemnified Party hereunder except to the extent (and only that such failure to the extent) the provide, delay in providing or omission of any particular detail actually and materially prejudices the ability of the Indemnifying Party’s ability Party to defend against such Claimmatter. (iib) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable shall respond to the Indemnified Party by accepting its obligation within twenty (20) Business Days following the date that the Notice of Claim is delivered to defend pursuant to Section 8.4(a) (the “Response Period”), specifying whether or not the Indemnifying Party disputes the claim(s) described in writing the Notice of Claim, describe in reasonable detail the basis for each such dispute and agreeing include reasonable supporting materials (a “Claim Response”). If the Indemnifying Party fails to pay defense costs (including reasonable out-of-pocket attorney’s fees and expensesgive a Claim Response within the Response Period, the Indemnifying Party shall be deemed not to dispute the claim(s) within 30 days described in the related Notice of receiving notice of the Third Party Claim. If the Indemnifying Party declines, fails to respond to gives a Claim Response within the notice, or fails to assume defense Response Period but does not in such Claim Response dispute all of the Third Party Claim within such 30-day period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate claim(s) made in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status related Notice of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled deemed not to assume dispute the defense undisputed claim(s) described in the related Notice of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Party Claim, without the consent of any Indemnified Party; provided, however, that the Indemnified Party shall not withhold its consent if such settlement or judgment involves solely the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this notice, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13. If the Indemnifying Party does elects not respond within 30 daysto dispute any claim described in a Notice of Claim, whether by failing to give a timely Claim Response or otherwise, then, subject to the limitations set forth in Section 8.6, the amount of Losses alleged in such Notice of Claim shall be conclusively deemed to be an obligation of the Indemnifying Party and the Indemnified Party shall send a second notice be paid the amount specified in the Notice of Claim as provided in Section 8.8 (it being acknowledged that the amount of any estimated Losses shall be revised by the Indemnified Party from time to time as the same are determined, all of which Losses shall be indemnified by the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”). If the Indemnifying Party does not notify delivers a Claim Response within the Indemnified Party within such 5 Business Days after the receipt of such second notice Response Period indicating that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) one or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability more of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, matters identified in the case Notice of any notice in which the amount Claim, Purchaser and Shareholder Representative, on behalf of the Claim (or any portion thereof) is estimatedEquityholders, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall promptly meet or confer by telephone within 20 Business Days in an attempt in good faith to resolve such the dispute. If Purchaser and Shareholder Representative do not resolve a dispute regarding a claim within thirty (30) days after the delivery of the Claim Response, either the Indemnifying Party or the Indemnified Party may submit the dispute to a court of competent jurisdiction for resolution. Upon resolution of such Persons are unable to resolve the dispute, either whether by agreement or by a court of competent jurisdiction, if it is determined that any indemnification payment is required pursuant to this Article VIII such amount shall be paid to the Indemnified Party as provided in Section 8.8. (c) For purposes of this Section 8.4, with respect to any matter for which the Purchaser Indemnified Parties may act seek indemnification pursuant to resolve Section 8.3(b), all actions to be taken (or not taken), the dispute in accordance with Section 32(bexercise (or failure to exercise) of any rights and all notices to be delivered by the Indemnifying Party shall be taken (or not taken), exercised (or not exercised) or delivered by the Shareholder Representative on behalf of the Equityholders, and each Equityholder shall be bound thereby as if all the Equityholders had taken (or omitted to take) such action, exercised (or failed to exercise) such rights or delivered such notice.

Appears in 1 contract

Samples: Merger Agreement (GTT Communications, Inc.)

Indemnification Claim Procedure. (ia) Any If any Purchaser Indemnified Party shall promptly notify or Seller Indemnified Party, as applicable (in the capacity as a Person seeking indemnification under this Article VII, the “Indemnified Party”), obtains actual knowledge of any matter not involving a Third Party or Parties alleged Claim that the Indemnified Party believes will entitle the Indemnified Party to be obligated to indemnify indemnification from another Party under this Article VII (in the capacity as a Person against whom indemnification is sought under this Article VII, the “Indemnifying Party”) in writing of any relevant pending or threatened Claim by ), the Indemnified Party shall promptly thereafter deliver to the Indemnifying Party a third party notice thereof (a “Third Party Notice of Claim”), ) describing such matter in reasonable detail detail, the facts and circumstances with respect basis for the indemnification obligation and, to the subject matter of extent reasonably estimable, the Claimestimated Losses resulting therefrom; provided, however, that delay in providing any failure to give such notice notification on a timely basis or to provide any particular details therein shall not release relieve the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), obligation to indemnify any Indemnified Party hereunder except to the extent (and only that such failure to the extent) the provide, delay in providing or omission of any particular detail actually and materially prejudices the ability of the Indemnifying Party’s ability Party to defend against such Claimmatter. (iib) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable shall respond to the Indemnified Party by accepting its obligation to defend in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s fees and expensesa “Claim Response”) within 30 thirty (30) days following the date that the Notice of receiving notice Claim is delivered to the Indemnifying Party (the “Response Period”). Any Claim Response must specify whether or not the Indemnifying Party disputes the claim(s) described in the Notice of Claim and, if known, describe in reasonable detail the Third basis for each such dispute and include supporting materials. If the Indemnifying Party fails to give a Claim Response within the Response Period, the Indemnifying Party shall be deemed not to dispute the claim(s) described in the related Notice of Claim. If the Indemnifying Party declines, fails to respond to gives a Claim Response with the notice, or fails to assume defense Response Period but does not in such Claim Response dispute all of the Third Party Claim within such 30-day period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate claim(s) made in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status related Notice of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled deemed not to assume dispute the defense undisputed claim(s) described in the related Notice of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Party Claim, without the consent of any Indemnified Party; provided, however, that the Indemnified Party shall not withhold its consent if such settlement or judgment involves solely the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this notice, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13. If the Indemnifying Party does elects not respond within 30 days, the Indemnified Party shall send a second notice to the Indemnifying Party, marked at the top dispute any claim described in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the Indemnified Party within such 5 Business Days after the receipt of such second notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall meet or confer by telephone within 20 Business Days in an attempt in good faith to resolve such dispute. If such Persons are unable to resolve the dispute, either Party may act to resolve the dispute in accordance with Section 32(b).a

Appears in 1 contract

Samples: Stock Purchase Agreement (Global Telecom & Technology, Inc.)

Indemnification Claim Procedure. (i) Any Indemnified Party shall promptly notify the Party or Parties alleged to be obligated to indemnify (the “Indemnifying Party”) in writing of any relevant pending or threatened Claim by a third party (a “Third Party Claim”), describing in reasonable detail the facts and circumstances with respect to the subject matter of the Claim; provided, however, that delay in providing such notice shall not release the Indemnifying Party from any of its obligations under Section 13(a15(a) or Section 13(b15(b), except to the extent (and only to the extent) the delay actually and materially prejudices the Indemnifying Party’s ability to defend such Claim. (ii) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party by accepting its obligation to defend in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s fees and expenses) within 30 days of receiving notice of the Third Party Claim. If the Indemnifying Party declines, fails to respond to the notice, or fails to assume defense of the Third Party Claim within such 30-day period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Party Claim, without the consent of any Indemnified Party; provided, however, that the Indemnified Party shall not withhold its consent if such settlement or judgment involves solely the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this notice, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 1315. If the Indemnifying Party does not respond within 30 days, the Indemnified Party shall send a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER PREPAID LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the Indemnified Party within such 5 Business Days after the receipt of such second notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall meet or confer by telephone within 20 Business Days in an attempt in good faith to resolve such dispute. If such Persons are unable to resolve the dispute, either Party may act to resolve the dispute in accordance with Section 32(b).marked

Appears in 1 contract

Samples: Master Prepaid Lease (Crown Castle International Corp)

Indemnification Claim Procedure. (i) Any Indemnified Party shall promptly notify the Party or Parties alleged to be obligated to indemnify (the “Indemnifying Party”) in writing of any relevant pending or threatened Claim by a third party (a “Third Party Claim”), describing in reasonable detail the facts and circumstances with respect to the subject matter of the Claim; provided, however, that delay in providing such notice shall not release the Indemnifying Party from any of its obligations under Section 13(a15(a) or Section 13(b15(b), except to the extent (and only to the extent) the delay actually and materially prejudices the Indemnifying Party’s 's ability to defend such Claim. (ii) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party by accepting its obligation to defend in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s 's fees and expenses) within 30 days of receiving notice of the Third Party Claim. If the Indemnifying Party declines, fails to respond to the notice, or fails to assume defense of the Third Party Claim within such 30-day period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Party Claim, without the consent of any Indemnified Party; provided, however, that the Indemnified Party shall not withhold its consent if such settlement or judgment involves solely the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this notice, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13. If the Indemnifying Party does not respond within 30 days, the Indemnified Party shall send a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”15. If the Indemnifying Party does not notify the Indemnified Party party within such 5 Business Days after the receipt of such second notice 30-day period that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a15(a) or Section 13(b15(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a15(a) or Section 13(b15(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the ClaimClaim within such 30-day period, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party Party, at the Vice President level or higher, shall meet or confer by telephone within 20 Business Days in an attempt in good faith to resolve such dispute. If such Persons are unable to resolve the dispute, either Party may act to resolve the dispute in accordance with Section 32(b38(i) and Section 38(j).

Appears in 1 contract

Samples: Master Prepaid Lease (Crown Castle International Corp)

Indemnification Claim Procedure. (ia) Any If any Party asserting a claim for indemnification (an “Indemnified Party”) shall desire to assert any claim for indemnification provided for under this Article IX or under Section 2.10 in respect of, arising out of, or involving a claim or demand made by any Person (other than a Party) against, or a Tax payable by, an Indemnified Party (a “Third Party Claim”), such Indemnified Party shall promptly notify the Party or Parties alleged to be obligated to indemnify the Indemnified Party (the “Indemnifying Party”) in writing of any relevant pending or threatened Claim by a third party (a “such Third Party Claim”), describing in reasonable detail the facts and circumstances with respect amount or the estimated amount of Claims sought thereunder, any other remedy sought thereunder, any relevant time constraints relating thereto and, to the subject matter extent practicable, any other material details pertaining thereto (a “Third Party Claim Notice”), promptly after receipt by such Indemnified Party of written notice of the Third Party Claim; provided, however, that any failure to provide or delay in providing such notice a Third Party Claim Notice shall not release affect the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), indemnification provided hereunder except to the extent (and only the Indemnifying Party shall have been actually prejudiced as a result of such failure or delay. To the extent permitted by applicable Law, the Indemnified Party shall deliver to the extentIndemnifying Party, promptly after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim; provided, however, that any failure to deliver or delay actually and materially prejudices in delivering such copies shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party’s ability to defend such Claimclaim shall have been actually prejudiced as a result of such failure or delay. (iib) The Indemnifying Party may assume and control the defense of any If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party that is and reasonably acceptable satisfactory to the Indemnified Party by accepting its obligation delivering notice to defend the Indemnified Party in writing within twenty (20) days after receiving the Third Party Claim Notice that it elects to assume such defense and agreeing to pay its defense costs in connection therewith (including reasonable out-of-pocket attorney’s attorneys’ fees and expenses) within 30 days of receiving notice of the Third Party Claim). If the Indemnifying Party declinesdeclines to indemnify, fails to respond to the notice, Third Party Claim Notice or fails to assume the defense (or cause its insurer to assume defense) of the Third Party Claim within such 30-twenty (20) day period, then the Indemnified Party may control the defense and of such Third Party Claim. Should the Indemnifying Party shall pay all reasonable out-of-pocket elect to assume the defense costs as of a Third Party Claim, the Indemnifying Party will not be required to indemnify the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party. The Party that is not controlling in connection with the defense of thereof, unless the Third Party Claim involves conflicts of interest or substantially different defenses for the Indemnified Party and the Indemnifying Party. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof and to retain separate counsel employ counsel, at its own expensecost and expense (except as provided in the immediately preceding sentence), separate from the counsel employed by the Indemnifying Party. The If the Indemnifying Party that is controlling chooses to defend any Third Party Claim, all the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any or prosecution thereof. Such cooperation shall include using commercially reasonable efforts to retain and (upon the Indemnifying Party’s request) provide to the Indemnifying Party records and information that are reasonably relevant to such Third Party Claim, to the extent required to maintain privilege, using commercially reasonable efforts to enter into a joint defense or similar agreement and using commercially reasonable efforts to make employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Notwithstanding the foregoing, Whether or not the Indemnifying Party shall not be entitled to assume have assumed the defense of a Third Party Claim, the Indemnified Party shall not admit any Liability with respect to, or settle, compromise or discharge, such Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, without the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) Party’s prior written consent. The Indemnifying Party shall not consent to a settlement or compromise of, or the entry of any judgment arising out of or in connection with, with any Third Party Claim, Claim without the written consent of any the applicable Indemnified Party; provided, however, that the Indemnified Party shall not withhold its consent if if: (i) contemporaneously with the effectiveness of such settlement settlement, compromise or judgment involves solely consent, the payment of moneyIndemnifying Party pays in full any obligation imposed on the Indemnified Party by such settlement, compromise or consent, which as a condition to such settlement, compromise or consent releases each relevant Indemnified Party completely and unconditionally in connection with such settlement, compromise or consent and without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying ; and (ii) such settlement, compromise or consent does not contain any equitable Order or term which in any manner affects, restrains or interferes with the business of the Indemnified Party or any of the Indemnified Party’s Affiliates. (c) If an Indemnified Party shall pay or cause desire to be paid all amounts assert any claim for indemnification provided for under this Article IX other than a claim in respect of, arising out of or involving a Third Party Claim (a “Direct Claim”), such settlement or judgment concurrently with the effectiveness Indemnified Party shall within thirty (30) days after becoming aware of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall Direct Claim notify the Indemnifying Party in writing of any Claim for indemnificationsuch Direct Claim, describing in reasonable detail the basis for such Claim. Within 30 days following receipt specific provisions of this noticeAgreement claimed to have been breached, the factual basis supporting the contention that such provisions were breached, the amount or the estimated amount of damages sought thereunder, any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Direct Claim Notice”); provided, however, that any failure to provide or delay in providing such notification shall not affect the indemnification provided for hereunder except to the extent the Indemnifying Party shall respondhave been actually prejudiced as a result of such failure or delay. The Indemnifying Party shall have a period of twenty (20) days within which to respond to any Direct Claim Notice, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13Article IX. If the Indemnifying Party does not so respond within 30 days, the Indemnified Party shall send a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE such twenty (520) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the Indemnified Party within such 5 Business Days after the receipt of such second notice day period stating that the Indemnifying Party disputes its liability for such Direct Claim, the Indemnifying Party will be deemed to the Indemnified Party under Section 13(a) or Section 13(b), as applicablehave accepted such Direct Claim, such Claim specified by the Indemnified Party in such notice claim shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Direct Claim to the Indemnified Party on as promptly as reasonably practicable after demand therefore or, in the case of any notice Direct Claim Notice in which the amount of the Direct Claim (or any portion thereof) is estimated, on as promptly as reasonably practicable after such later date when the amount of such claim Direct Claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence all or scope any part of an obligation to indemnify for the such Direct Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall meet or confer by telephone within 20 Business Days in an attempt in good faith for twenty (20) days to resolve such disputeDirect Claim. If no such Persons are unable to resolve the disputeagreement can be reached through good faith negotiation within twenty (20) Business Days, either the Indemnified Party or the Indemnifying Party may act to resolve the such dispute in accordance with Section 32(b)11.2. (d) The SM Group Members shall control the defense of all Claims related to Pre-Closing Liabilities. Buyer and their Affiliates shall control the defense of all Claims related to Post-Closing Liabilities.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Shenandoah Telecommunications Co/Va/)

Indemnification Claim Procedure. (i) Any Indemnified Party shall promptly notify the Party or Parties alleged to be obligated to indemnify (the "Indemnifying Party") in writing of any relevant pending or threatened Claim by a third party (a "Third Party Claim"), describing in reasonable detail the facts and circumstances with respect to the subject matter of the Claim; provided, however, that delay in providing such notice shall not release the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), except to the extent (and only to the extent) the delay actually and materially prejudices the Indemnifying Party’s 's ability to defend such Claim. (ii) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party by accepting its obligation to defend in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s 's fees and expenses) within 30 days of receiving notice of the Third Party Claim. If the Indemnifying Party declines, fails to respond to the notice, or fails to assume defense of the Third Party Claim within such 30-day period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Party Claim, without the consent of any Indemnified Party; provided, however, that the Indemnified Party shall not withhold its consent if such settlement or judgment involves solely the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this notice, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13. If the Indemnifying Party does not respond within 30 days, the Indemnified Party shall send a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the Indemnified Party party within such 5 Business Days after the receipt of such second notice 30-day period that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the ClaimClaim within such 30-day period, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party Party, at the Vice President level or higher, shall meet or confer by telephone within 20 Business Days in an attempt in good faith to resolve such dispute. If such Persons are unable to resolve the dispute, either Party may act to resolve the dispute in accordance with Section 32(bSections 33(i) and 33(j).

Appears in 1 contract

Samples: Master Lease Agreement (Crown Castle International Corp)

Indemnification Claim Procedure. (ia) Any If any Purchaser Indemnified Party shall promptly notify or Seller Indemnified Party, as applicable (in the capacity as a Person seeking indemnification under this Article VIII, the “Indemnified Party”), obtains actual knowledge of any matter not involving a Third Party Claim that the Indemnified Party reasonably believes will entitle the Indemnified Party to indemnification from Purchaser or Parties alleged to be obligated to indemnify Seller under this Article VIII (in the capacity as a Person against whom indemnification is sought under this Article VIII, the “Indemnifying Party”) in writing of any relevant pending or threatened Claim by ), the Indemnified Party shall promptly thereafter deliver to the Indemnifying Party a third party notice thereof (a “Third Party Notice of Claim”), ) describing such matter in reasonable detail the facts and circumstances with respect and, to the subject matter of extent reasonably estimable, the Claimestimated Losses resulting therefrom; provided, however, that delay in providing any failure to give such notice notification on a timely basis or to provide any particular details therein shall not release relieve the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), obligation to indemnify any Indemnified Party hereunder except to the extent (and only that such failure to the extent) the provide, delay in providing or omission of any particular detail actually and materially prejudices the ability of the Indemnifying Party’s ability Party to defend against such Claimmatter. (iib) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable shall respond to the Indemnified Party by accepting its obligation within twenty (20) Business Days following the date that the Notice of Claim is delivered to defend pursuant to Section 8.4(a) (the “Response Period”), specifying whether or not the Indemnifying Party disputes the claim(s) described in writing the Notice of Claim, describe in reasonable detail the basis for each such dispute and agreeing include reasonable supporting materials (a “Claim Response”). If the Indemnifying Party fails to pay defense costs (including reasonable out-of-pocket attorney’s fees and expensesgive a Claim Response within the Response Period, the Indemnifying Party shall be deemed not to dispute the claim(s) within 30 days described in the related Notice of receiving notice of the Third Party Claim. If the Indemnifying Party declines, fails to respond to gives a Claim Response within the notice, or fails to assume defense Response Period but does not in such Claim Response dispute all of the Third Party Claim within such 30-day period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate claim(s) made in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status related Notice of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled deemed not to assume dispute the defense undisputed claim(s) described in the related Notice of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Party Claim, without the consent of any Indemnified Party; provided, however, that the Indemnified Party shall not withhold its consent if such settlement or judgment involves solely the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this notice, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13. If the Indemnifying Party does elects not respond within 30 daysto dispute any claim described in a Notice of Claim, whether by failing to give a timely Claim Response or otherwise, then, subject to the limitations set forth in Section 8.6, the amount of Losses alleged in such Notice of Claim shall be conclusively deemed to be an obligation of the Indemnifying Party and the Indemnified Party shall send a second notice be paid the amount specified in the Notice of Claim as provided in Section 8.8 (it being acknowledged that the amount of any estimated Losses shall be revised by the Indemnified Party from time to time as the same are determined, all of which Losses shall be indemnified by the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”). If the Indemnifying Party does not notify delivers a Claim Response within the Indemnified Party within such 5 Business Days after the receipt of such second notice Response Period indicating that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) one or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability more of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, matters identified in the case Notice of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it Purchaser and Seller shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall promptly meet or confer by telephone within 20 Business Days in an attempt in good faith to resolve such the dispute. If Purchaser and Seller do not resolve a dispute regarding a claim within thirty (30) days after the delivery of the Claim Response, either the Indemnifying Party or the Indemnified Party may submit the dispute to a court of competent jurisdiction for resolution. Upon resolution of such Persons are unable to resolve the dispute, either whether by agreement or by a court of competent jurisdiction, if it is determined that any indemnification payment is required pursuant to this Article VIII such amount shall be paid to the Indemnified Party may act to resolve the dispute as provided in accordance with Section 32(b)8.8.

Appears in 1 contract

Samples: Stock Purchase Agreement (GTT Communications, Inc.)

Indemnification Claim Procedure. (ia) Any Party asserting a claim for indemnification (the “Indemnified Party Party”) shall promptly notify the Party or Parties alleged to be obligated to indemnify (the “Indemnifying Party”) in writing of any relevant pending or threatened Legal Action or other Claim by a third third-party (a “Third Third-Party Claim”), describing in reasonable detail the facts and circumstances with respect to the subject matter of the Third Party Claim; provided, however, that delay in providing such notice shall not release the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b)this Article 11, except to the extent (and only to the extent) the delay actually and materially prejudices the Indemnifying Party’s ability to defend such Third Party Claim. (iib) The Indemnifying Party may assume and control the defense of any Third Third-Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party by accepting its obligation to defend in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s fees and expenses) within 30 days of receiving notice of the Third Third-Party Claim. If the Indemnifying Party declines, fails to respond to the notice, or fails to assume defense of the Third Third-Party Claim within such 30-day periodperiod or is otherwise not entitled to assume the defense of such Third-Party Claim as provided in this Section 11.3(b), then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable and documented out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Third-Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expenseexpense (unless counsel to the Indemnified Party shall have in good faith concluded that there is or is reasonably likely to be an actual conflict of interest between the Indemnifying Party and the Indemnified Parties in such action that would reasonably be expected to adversely affect the Indemnifying Party’s ability to defend the interests of the Indemnified Party in such Third-Party Claim, in which case the fees and expenses of counsel of the Indemnified Party, even if the Indemnifying Party is controlling the defense, shall be indemnifiable by the Indemnifying Party). The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Third-Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Third-Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Third-Party Claim) if the Third Third-Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Third-Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iiic) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Third-Party Claim, without the consent of any Indemnified Party; , provided, however, that the Indemnified Party shall not withhold its consent if such settlement or judgment involves solely the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoingwrongdoing and without exceeding the Cap. The Subject to the limitations on liability set forth in Section 11.5, the Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Third-Party Claim. (ivd) For indemnification Claims other than Third Third-Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this notice, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13. If the Indemnifying Party does not respond within 30 days, the Indemnified Party shall send a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the Indemnified Party within such 5 Business Days after the receipt of such second notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claimclaim, management representatives of the Indemnified Party and the Indemnifying Party Party, at the Vice President level or higher, shall meet or confer by telephone within 20 twenty (20) Business Days in an attempt in good faith to resolve such dispute. If such Persons are unable to resolve the dispute, either Party may act to resolve the dispute in accordance with Section 32(b)13.12 and Section 13.13. (e) The Cumulus Parties and their Affiliates shall control the defense of all Legal Actions or other Claims related to Excluded Liabilities.

Appears in 1 contract

Samples: Master Agreement (Cumulus Media Inc)

Indemnification Claim Procedure. (ia) Any Promptly after obtaining actual knowledge of any matter that a Purchaser Indemnified Party shall promptly notify or Seller Indemnified Party, as applicable (the “Indemnified Party”), acting in good faith, reasonably believes will entitle the Indemnified Party or Parties alleged to be obligated to indemnify indemnification from the other party (the “Indemnifying Party”) under this Article X or Section 7.2, the Indemnified Party shall promptly provide to the Indemnifying Party notice describing the matter in writing reasonable detail, including the nature of the claim, the basis for the indemnification obligation and the estimated amount of Losses resulting therefrom to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) (a “Notice of Claim”). To the extent that any relevant pending such matter relates to a Claim or threatened Claim Proceeding by a third party (party, such Claim or Proceeding is referred to herein as a “Third Party Claim”), describing in reasonable detail the facts and circumstances with respect which is governed by Section 10.5. (b) For claims for indemnification under this Article X or Article VII other than those relating to the subject matter of the Claim; providedThird Party Claims, however, that delay in providing such notice shall not release the Indemnifying Party from any shall have twenty (20) Business Days after its receipt of its obligations under Section 13(a) or Section 13(b), except the Notice of Claim to respond to the extent (and only to the extentclaim(s) the delay actually and materially prejudices described therein. Such response shall set forth, in reasonable detail, the Indemnifying Party’s ability objection(s) to defend the claim(s) and its bases for such Claim. (ii) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by objection(s). If the Indemnifying Party that is reasonably acceptable fails to provide such a response with such time period, the Indemnified Indemnifying Party by accepting its obligation will be deemed to defend have conceded the claim(s) set forth in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s fees and expenses) within 30 days the Notice of receiving notice of the Third Party Claim. If the Indemnifying Party declines, fails to respond to the notice, or fails to assume defense of the Third Party Claim provides its response within such 30-day time period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Party Claim, without the consent of any Indemnified Party; provided, however, that the Indemnified Party shall not withhold its consent if such settlement or judgment involves solely the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this notice, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13. If the Indemnifying Party does not respond within 30 days, the Indemnified Party shall send a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the Indemnified Party within such 5 Business Days after the receipt of such second notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall meet or confer by telephone within 20 negotiate the resolution of the claim(s) for a period of not less than twenty (20) Business Days in an attempt in good faith to resolve after such disputeresponse is provided. If such Persons the Indemnifying Party and the Indemnified Party are unable to resolve any such claim(s) within such time period, the disputeIndemnified Party shall be entitled to pursue any legal remedies available to the Indemnified Party against the Indemnifying Party with respect solely to the unresolved claim(s), either Party may act subject to resolve the dispute in accordance with other provisions of this Article X and Section 32(b)7.2, as applicable.

Appears in 1 contract

Samples: Purchase Agreement (Ntelos Holdings Corp)

Indemnification Claim Procedure. (ia) Any Party asserting a claim for indemnification (the “Indemnified Party Party”) shall promptly notify the Party or Parties alleged to be obligated to indemnify (the “Indemnifying Party”) in writing of any relevant pending or threatened Claim by a third third-party (a “Third Third-Party Claim”), describing in reasonable detail the facts and circumstances with respect to the subject matter of the Claim; provided, however, that delay in providing such notice shall not release the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b)this Article 12, except to the extent (and only to the extent) the delay actually and materially prejudices the Indemnifying Party’s ability to defend such Claim. (iib) The Indemnifying Party may assume and control the defense of any Third Third-Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party by accepting its obligation to defend in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s fees and expenses) within 30 days of receiving notice of the Third Third-Party Claim. If the Indemnifying Party declines, fails to respond to the notice, or fails to assume defense of the Third Third-Party Claim within such 30-day period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Third-Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iiic) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Third-Party Claim, without the consent of any Indemnified Party; , provided, however, that the Indemnified Party shall not withhold its consent if such settlement or judgment involves solely the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Third-Party Claim. (ivd) For indemnification Claims other than Third Third-Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this notice, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13. If the Indemnifying Party does not respond within 30 days, the Indemnified Party shall send a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”Article 12. If the Indemnifying Party does not notify the Indemnified Party party within such 5 Business Days after the receipt of such second notice 30-day period that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a12.1(a), Section 12.1(b), Section 12.2(a) or Section 13(b)12.2(b) , as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed deeded a liability of the Indemnifying Party under Section 13(a12.1(a), Section 12.1(b), Section 12.2(a) or Section 13(b12.2(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the ClaimClaim within such 30-day period, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party Party, at the Vice President level or higher, shall meet or confer by telephone within 20 Business Days business days in an attempt in good faith to resolve such dispute. If such Persons are unable to resolve the dispute, either Party may act to resolve the dispute in accordance with Section 32(b)14.12 and Section 14.13. (e) The T-Mobile Contributors and their Affiliates shall control the defense of all Claims related to Excluded Liabilities.

Appears in 1 contract

Samples: Master Agreement (Crown Castle International Corp)

Indemnification Claim Procedure. Except as provided in Section 5.2.2 with respect to Third Party claims, in the event of a claim made by a Buyer Indemnitee or Seller Indemnitee (i) Any the “Indemnified Party”), the Indemnified Party shall promptly notify give reasonably prompt written notice to the other Party or Parties alleged to be obligated to indemnify (the “Indemnifying Party”) in writing of any relevant pending or threatened Claim by a third party (a “Third Party Claim”), describing which notice (an “Indemnification Certificate”) shall: (a) state that the Indemnified Party has paid or properly accrued or reasonably anticipates that it will have to pay or accrue Losses that are subject to indemnification by the Indemnifying Party pursuant to Section 5.1.1 or Section 5.1.2, as applicable, and (b) specify in reasonable detail the facts individual items and circumstances with respect to the subject matter amounts of the Claim; provided, however, that delay in providing such notice shall not release the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), except to the extent (and only to the extent) the delay actually and materially prejudices the Indemnifying Party’s ability to defend such Claim. (ii) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party by accepting its obligation to defend in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s fees and expenses) within 30 days of receiving notice of the Third Party Claim. If the Indemnifying Party declines, fails to respond to the notice, or fails to assume defense of the Third Party Claim within such 30-day period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoingLosses, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending date each such Third Party Claim) if the Third Party Claim seeks an order, injunction item was paid or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement ofproperly accrued, or the entry basis for such anticipated Liability, and a description of any judgment arising out the basis of or in connection with, any Third Party Claim, without the consent of any such Indemnified Party’s claim for indemnification; provided, however, that the failure to give reasonably prompt notice shall not relieve the applicable Indemnifying Party of its indemnification obligations under this Agreement except to the extent that the Indemnifying Party is materially prejudiced by any delay in receiving such notice. In the event that the Indemnifying Party agrees to or is determined to have an obligation to reimburse the Indemnified Party shall not withhold its consent if for Losses as provided in this Article 5, the Indemnifying Party shall, subject to the provisions of Section 5.3, promptly (but, in any event, within 30 days) pay such settlement or judgment involves solely amount to the payment Indemnified Party by wire transfer of money, without any finding or admission of any violation of Law or admission of any wrongdoingimmediately available funds to the account specified in writing by the Indemnified Party. The Indemnifying Party shall pay or cause may defer making such payment if it objects in a written statement to be paid all amounts arising out of the claim made in the Indemnification Certificate and delivers such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify statement to the Indemnifying Party prior to the expiration of such 30-day period. An Indemnifying Party’s failure to object within such 30-day period to any claim set forth in an Indemnification Certificate shall be deemed to be the Indemnifying Party’s acceptance of, and waiver of any objections to, such claim. If an Indemnifying Party shall so object in writing of to any Claim for indemnification, describing claim or claims made in reasonable detail the basis for such Claim. Within 30 days following receipt of this noticeany Indemnification Certificate, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13. If the Indemnifying Party does not respond within 30 days, and the Indemnified Party shall send a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the Indemnified Party within such 5 Business Days after the receipt of such second notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall meet or confer by telephone within 20 Business Days in an attempt in good faith for a period of 20 days following the Indemnified Party’s receipt of such objection notice to resolve agree upon the respective rights of the parties with respect to each of such disputeclaims. If no such Persons are unable to resolve the disputeagreement can be reached after such 20-day period of good faith negotiation, either the Indemnifying Party or the Indemnified Party may act to resolve initiate Litigation for purposes of having the dispute matter settled in accordance with Section 32(b)the terms of this Agreement. Portions of this Exhibit, indicated by the mxxx “[***],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.

Appears in 1 contract

Samples: Asset Purchase Agreement (Igi Laboratories, Inc)

Indemnification Claim Procedure. Except as provided in Section 7.2.2 with respect to Third Party claims, in the event of a claim made by a Buyer Indemnitee or a Seller Indemnitee (i) Any the “Indemnified Party”), the Indemnified Party shall promptly notify give reasonably prompt written notice to the other Party or Parties alleged to be obligated to indemnify (the “Indemnifying Party”) in writing of any relevant pending or threatened Claim by a third party (a “Third Party Claim”), describing which notice (an “Indemnification Certificate”) shall: (a) state that the Indemnified Party has paid or properly accrued or in good faith anticipates that it will have to pay or accrue Losses that are subject to indemnification by the Indemnifying Party pursuant to Section 7.1.1 or Section 7.1.2, as applicable, and (b) specify in reasonable detail the facts and circumstances with respect to supporting the subject matter of the Claim; provided, however, that delay in providing such notice shall not release the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), except Indemnified Party’s claim for indemnification (to the extent (known) and only contain a non-binding preliminary, good faith estimate of the amount to the extent) the delay actually and materially prejudices the Indemnifying Party’s ability to defend such Claim. (ii) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable to which the Indemnified Party by accepting its obligation claims to defend in writing and agreeing to pay defense costs be entitled (including reasonable out-of-pocket attorney’s fees and expenses) within 30 days of receiving notice of the Third Party Claim. If the Indemnifying Party declines, fails to respond to the notice, or fails to assume defense of the Third Party Claim within such 30-day period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Party Claim, without the consent of any Indemnified Partyextent known); provided, however, that the Indemnified Party failure to give, or delay in giving, reasonably prompt notice shall not withhold its consent if such settlement or judgment involves solely relieve the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The applicable Indemnifying Party shall pay of its indemnification obligations under this Agreement except to the extent that the Indemnifying Party forfeits rights or cause to be paid all amounts arising out defenses by reason of such settlement delay or judgment concurrently with failure. In the effectiveness of such settlement and obtain, as a condition of any settlement event that the Indemnifying Party agrees to or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, is determined to have an obligation to indemnify or reimburse the Indemnified Party promptly shall notify for Losses as provided in this ARTICLE 7 the Indemnifying Party shall, subject to the provisions of Section 7.2.2, promptly (but in any event, within 30 days of receipt of the Indemnification Certificate) pay such amount to the Indemnified Party by wire transfer of immediately available funds to the account specified in writing by the Indemnified Party. If the Indemnifying Party objects to all or a portion of any Claim for indemnificationthe Indemnified Party’s claim made in the Indemnification Certificate, describing in reasonable detail the basis for Indemnifying Party will notify the Indemnified Party of such Claim. Within objection by delivering a written statement (the “Objection Notice”) to the Indemnifying Party within 30 days following receipt of the Indemnification Certificate. The Objection Notice shall indicate whether the Indemnifying Party objects to all or only a portion of the claim specified in the Indemnification Certificate and shall specify in reasonable detail the facts and circumstances supporting the Indemnifying Party’s basis and reasons for such objection. An Indemnifying Party’s failure to deliver an Objection Notice in accordance with the provisions of this noticeSection 7.2.1 within such 30-day period to any claim set forth in an Indemnification Certificate shall be deemed to be the Indemnifying Party’s acceptance of, and waiver of any objections to, such claim and the Indemnifying Party shall respond, stating whether it disputes be deemed to have agreed that an amount equal to the existence or scope of an obligation full claimed amount specified in the Indemnification Certificate is owed to indemnify the Indemnified Party under this Section 13Party. If the Indemnifying Party does not respond within 30 days, in its Objection Notice objects only to a portion of the Indemnified Party shall send a second notice claim set forth in the Indemnification Certificate (the amount of Losses claimed in the Indemnification Certificate to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If which the Indemnifying Party does not notify object shall be referred to herein as the “Agreed Amount”), then such Indemnifying Party shall, within 10 Business Days following the delivery of such Objection Notice pay the Agreed Amount to the Indemnified Party. If an Indemnifying Party shall provide an Objection Notice in accordance with the provisions of this Section 7.2.1, the Indemnifying Party and the Indemnified Party within such 5 Business Days after the receipt of such second notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall meet or confer by telephone within 20 Business Days in an attempt in good faith for a period of 20 days following the Indemnified Party’s receipt of the Objection Notice to resolve agree upon the rights of the respective parties with respect to each of such disputeclaims. If no such Persons are unable to resolve the disputeagreement can be reached after such 20-day period of good faith negotiation, either the Indemnifying Party or the Indemnified Party may act to resolve initiate Litigation for purposes of having the dispute matter settled in accordance with Section 32(b)the terms of this Agreement.

Appears in 1 contract

Samples: Asset Purchase Agreement (Concordia Healthcare Corp.)

Indemnification Claim Procedure. (ia) Any If any Buyer Indemnitee or Seller Indemnitee, as applicable (in the capacity as a Person seeking indemnification under this Article VI, the “Indemnified Party”), obtains actual knowledge of any matter not involving a Third Party Claim that the Indemnified Party shall promptly notify believes will entitle the Indemnified Party to indemnification from Buyer or Parties alleged to be obligated to indemnify any Seller or Sellers under this Article VI (in the capacity as a Person against whom indemnification is sought under this Article VI, the “Indemnifying Party”) in writing of any relevant pending or threatened Claim by ), the Indemnified Party shall promptly thereafter deliver to the Indemnifying Party a third party notice thereof (a “Third Party Notice of Claim”), ) describing such matter in reasonable detail the facts and circumstances with respect and, to the subject matter of extent reasonably estimable, the Claimestimated Losses resulting therefrom; provided, however, that delay in providing any failure to give such notice notification on a timely basis or to provide any particular details therein shall not release relieve the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), obligation to indemnify any Indemnified Party hereunder except to the extent (and only that such failure to the extent) the provide, delay in providing or omission of any particular detail actually and materially prejudices the ability of the Indemnifying Party’s ability Party to defend against such Claimmatter. (iib) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable shall respond to the Indemnified Party by accepting its obligation within thirty (30) days following the date that the Notice of Claim is delivered to defend pursuant to Section 6.3(a) (the “Response Period”), specifying whether or not the Indemnifying Party disputes the claim(s) described in writing the Notice of Claim, describe in reasonable detail the basis for each such dispute and agreeing include reasonable supporting materials (a “Claim Response”). If Indemnifying Party fails to pay defense costs (including reasonable out-of-pocket attorney’s fees and expensesgive a Claim Response within the Response Period, the Indemnifying Party shall be deemed not to dispute the claim(s) within 30 days described in the related Notice of receiving notice of the Third Party Claim. If the Indemnifying Party declines, fails to respond to gives a Claim Response within the notice, or fails to assume defense Response Period but does not in such Claim Response dispute all of the Third Party Claim within such 30-day period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate claim(s) made in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status related Notice of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled deemed not to assume dispute the defense undisputed claim(s) described in the related Notice of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Party Claim, without the consent of any Indemnified Party; provided, however, that the Indemnified Party shall not withhold its consent if such settlement or judgment involves solely the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this notice, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13. If the Indemnifying Party does elects not respond within 30 daysto dispute any claim described in a Notice of Claim, whether by failing to give a timely Claim Response or otherwise, then the amount of Losses alleged in such Notice of Claim shall be conclusively deemed to be an obligation of the Indemnifying Party and the Indemnified Party shall send a second notice be paid the amount specified in the Notice of Claim as provided in Section 6.5 (it being acknowledged that the amount of any estimated Losses may be revised by the Indemnified Party from time to time as the same are determined, all of which Losses shall be indemnified by the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”). If the Indemnifying Party does not notify delivers a Claim Response within the Indemnified Party within such 5 Business Days after the receipt of such second notice Response Period indicating that the Indemnifying Party disputes its liability to one or more of the Indemnified Party under Section 13(a) matters identified in the Notice of Claim, Buyer or Section 13(b)Parent, as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicablecase may be, and the Indemnifying Party applicable Seller or Sellers (with respect to any claim by the Buyer Indemnitees for indemnification pursuant to Section 6.2(a)) shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall promptly meet or confer by telephone within 20 Business Days in an attempt in good faith to resolve such the dispute. If Buyer or Parent, as the case may be, and the Sellers, as applicable, do not resolve a dispute regarding a claim within thirty (30) days after the delivery of the Claim Response, either the Indemnifying Party or the Indemnified Party may submit the dispute to a court of competent jurisdiction set forth in Section 9.3(a) for resolution. Upon resolution of such Persons are unable to resolve the dispute, either whether by agreement or by a court of competent jurisdiction, if it is determined that any indemnification payment is required pursuant to this Article VI such amount shall be paid to the Indemnified Party may act to resolve the dispute as provided in accordance with Section 32(b)6.5.

Appears in 1 contract

Samples: Equity Purchase Agreement (FreightCar America, Inc.)

Indemnification Claim Procedure. (i) Any If any Purchaser Indemnified Party shall promptly notify or Stockholder Indemnified Party, as applicable (the “Indemnified Party”), learns of any matter that it believes will entitle the Indemnified Party or Parties alleged to be obligated to indemnify indemnification from the other party (the “Indemnifying Party”) under this Article VII, the Indemnified Party shall provide to Indemnifying Party notice describing the matter in writing reasonable detail, including the nature of any relevant pending or threatened Claim by a third party the claim, the basis for the indemnification obligation, to the extent reasonably estimable, the estimated Losses resulting therefrom, and reasonable supporting documentation (a “Third Party Notice of Claim”). The Indemnifying Party shall have ten (10) Business Days after its receipt of the Notice of Claim to respond to the claim(s) described therein in a written notice to the Indemnified Party (a “Dispute Notice”) setting forth, describing in reasonable detail the facts and circumstances with respect to the subject matter of the Claim; provideddetail, however, that delay in providing such notice shall not release the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), except to the extent (and only to the extent) the delay actually and materially prejudices the Indemnifying Party’s ability objection(s) to defend the claim(s), its bases for such Claim. (iiobjection(s) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by reasonable documentation supporting its objection(s). If the Indemnifying Party that is reasonably acceptable fails to provide a Dispute Notice with such time period, the Indemnified Indemnifying Party by accepting its obligation will be deemed to defend have conceded the claim(s) set forth in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s fees and expenses) within 30 days the Notice of receiving notice of the Third Party Claim. If the Indemnifying Party declines, fails to respond to the notice, or fails to assume defense of the Third Party Claim provides a Dispute Notice within such 30-day time period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Party Claim, without the consent of any Indemnified Party; provided, however, that the Indemnified Party shall not withhold its consent if such settlement or judgment involves solely the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this notice, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13. If the Indemnifying Party does not respond within 30 days, the Indemnified Party shall send a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the Indemnified Party within such 5 Business Days after the receipt of such second notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall meet or confer by telephone within 20 Business Days in an attempt negotiate in good faith to resolve such disputeresolution of the disputed claim(s) for a period of not less than twenty (20) Business Days after the response is provided. If such Persons the Indemnifying Party and the Indemnified Party are unable to resolve any such claim(s) within such time period, the disputeIndemnified Party shall be entitled to pursue any legal remedies available to the Indemnified Party against the Indemnifying Party with respect to the unresolved claim(s), either Party may act subject to resolve Stockholder Indemnity Deductible, the dispute Stockholder Indemnity Cap, the Purchaser Indemnity Deductible, the Purchaser Indemnity Cap and the other provisions of this Article VII, in accordance with Section 32(b)each case to the extent applicable.

Appears in 1 contract

Samples: Asset Purchase Agreement (Greenville Tube CO)

Indemnification Claim Procedure. Any Party asserting a claim for indemnification (ithe “Indemnified Party”) Any Indemnified Party shall promptly notify the Party or Parties alleged to be obligated to indemnify (the “Indemnifying Party”) in writing of any relevant pending or threatened Claim by a third third-party (a “Third Third-Party Claim”), describing in reasonable detail the facts and circumstances with respect to the subject matter of the Claim; provided, however, that delay in providing such notice shall not release the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b)this Article 12, except to the extent (and only to the extent) the delay actually and materially prejudices the Indemnifying Party’s ability to defend such Claim. . (iib) The Indemnifying Party may assume and control the defense of any Third Third-Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party by accepting its obligation to defend in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s fees and expenses) within 30 days of receiving notice of the Third Third-Party Claim. If the Indemnifying Party declines, fails to respond to the notice, or fails to assume defense of the Third Third-Party Claim within such 30-day period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Third-Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Party Claim, without the consent of any Indemnified Party; provided, however, that the Indemnified Party shall not withhold its consent if such settlement or judgment involves solely the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this notice, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13. If the Indemnifying Party does not respond within 30 days, the Indemnified Party shall send a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the Indemnified Party within such 5 Business Days after the receipt of such second notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall meet or confer by telephone within 20 Business Days in an attempt in good faith to resolve such dispute. If such Persons are unable to resolve the dispute, either Party may act to resolve the dispute in accordance with Section 32(b).

Appears in 1 contract

Samples: Master Agreement

Indemnification Claim Procedure. (ia) Any Promptly after obtaining knowledge of any matter that a Purchaser Indemnified Party shall promptly notify the or a Company Indemnified Party, acting in good faith, reasonably believes will entitle such Purchaser Indemnified Party or Parties alleged Company Indemnified Party (in such capacity, an “Indemnified Party”) to indemnification under this Article IX from any Person who would be obligated to indemnify such Indemnified Party if the claim is indemnifiable hereunder (such obligated Person, the “Indemnifying Party”) ), such Indemnified Party shall promptly provide to the Equityholder Representative, if the Indemnified Party is a Purchaser Indemnified Party, or to Purchaser, if the Indemnified Party is a Company Indemnified Party (in writing this capacity, the “Indemnifying Party Representative”), notice describing the matter in reasonable detail, including the nature of any relevant pending or threatened Claim by a third party the claim, the basis for the indemnification obligation and the Losses resulting therefrom (a “Third Party Notice of Claim”), describing in reasonable detail the facts and circumstances with respect to the subject matter of the Claim; provided, however, that delay in providing such notice the failure to timely provide a Notice of Claim hereunder shall not release the relieve any Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), the obligation to indemnify such Indemnified Party except to the extent (and only that such Indemnified Party’s failure to the extent) the provide or delay in providing a Notice of Claim actually and materially prejudices the Indemnifying Party’s ability to defend against or contest or resolve such Claimmatter. (iib) The Indemnifying Party may assume and control the defense of any For claims for indemnification under this Article IX other than those relating to Third Party Claim with counsel selected by Claims, during the period of thirty (30) Business Days after delivery of the Notice of Claim, the Indemnifying Party that is reasonably acceptable Representative may deliver to the Indemnified Party by accepting its obligation who delivered such Notice of Claim a response (a “Response Notice”) in which the Indemnifying Party Representative (i) agrees that the full amount of Losses stated in the Notice of Claim is owed to defend in writing and agreeing to pay defense costs such Indemnified Party, (including reasonable out-of-pocket attorney’s fees and expensesii) within 30 days of receiving notice agrees that part (but not all) of the Third amount of Losses stated in the Notice of Claim is owed to such Indemnified Party Claimor (iii) asserts that no part of the amount of Losses stated in the Notice of Claim is owed to such Indemnified Party. Unless the Indemnifying Party Representative agrees in such Response Notice that the full amount of Losses stated in the Notice of Claim is owed to such Indemnified Party, such Response Notice shall set forth, in reasonable detail, the Indemnifying Party Representative’s objections to the claims and its basis for such objections. If the Indemnifying Party declines, Representative fails to respond provide such a Response Notice to the notice, or fails to assume defense Indemnified Party who delivered the related Notice of the Third Party Claim within such thirty (30-day ) Business Day period, then the Indemnifying Parties shall be deemed to have objected to all of the claims set forth in the Notice of Claim and the Indemnifying Party Representative or the Indemnified Party may control thereafter pursue any legal remedies available to it with respect to the defense claims set forth in such Notice of Claim, subject, to the extent applicable, to the De Minimis Claim Amount, the Indemnification Deductible, the Indemnification Cap and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Party Claim, without the consent of any Indemnified Party; provided, however, that the Indemnified Party shall not withhold its consent if such settlement or judgment involves solely the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt provisions of this notice, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13Article IX. If the Indemnifying Party does not respond within 30 days, the Indemnified Party shall send Representative provides a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the Indemnified Party Response Notice within such 5 thirty (30) Business Days after the receipt of Day period and such second notice that the Indemnifying Party disputes its liability Response Notice objects to the Indemnified Party under Section 13(a) or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability any of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, claims set forth in the case Notice of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party Representative, as the case may be, shall meet or confer by telephone within 20 negotiate the resolution of the claim(s) for a period of not less than thirty (30) Business Days in an attempt in good faith after such Response Notice is delivered to resolve such disputeIndemnified Party. If such Persons the Indemnified Party and the Indemnifying Party Representative are unable to resolve all such claims within such time period, the disputeIndemnified Party or Indemnifying Party Representative may thereafter pursue any legal remedies available to it with respect solely to the unresolved claims, either Party may act subject, to resolve the dispute in accordance with Section 32(b)extent applicable, to the De Minimis Claim Amount, the Indemnification Deductible, the Indemnification Cap and the other provisions of this Article IX.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Akorn Inc)

Indemnification Claim Procedure. (ia) Any Promptly after obtaining actual knowledge of any matter that a Purchaser Indemnified Party shall promptly notify or Seller Indemnified Party, as applicable (the “Indemnified Party”), acting in good faith, reasonably believes will entitle the Indemnified Party or Parties alleged to be obligated to indemnify indemnification from any other party (the “Indemnifying Party”) under this Article VII, the Indemnified Party shall promptly provide to the Indemnifying Party notice describing the matter in writing reasonable detail, including the nature of any relevant pending or threatened Claim by a third party the claim, the basis for the indemnification obligation and the Losses resulting therefrom (a “Third Party Notice of Claim”), describing in reasonable detail the facts and circumstances with respect to the subject matter of the Claim; provided, however, that delay in providing such notice the failure to timely provide a Notice of Claim hereunder shall not release the relieve an Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), obligation to indemnify an Indemnified Party except to the extent (and only that the Indemnified Party’s failure to the extent) the provide or delay actually and materially in providing a Notice of Claim prejudices the Indemnifying Party’s ability to defend against or contest such Claim. matter. (ii) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by If the Indemnifying Party that is reasonably acceptable a Seller or the Sellers, delivery by an Indemnified Party of a Notice of Claim to the Indemnified Stockholder Representative shall be deemed to be effective delivery of notice to the Indemnifying Party.) (b) For claims for indemnification under this Article VII other than those relating to Third Party by accepting Claims and as otherwise provided in Section 7.6, the Indemnifying Party shall have thirty (30) Business Days after its obligation to defend in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s fees and expenses) within 30 days of receiving notice receipt of the Third Notice of Claim to respond to the claim(s) described therein. Such response shall set forth, in reasonable detail, the Indemnifying Party’s objection(s) to the claim(s) and its bases for such objection(s). If the Indemnifying Party fails to provide such a response with such time period, the Indemnifying Party will be deemed to have conceded the claim(s) set forth in the Notice of Claim. If the Indemnifying Party declines, fails to respond to the notice, or fails to assume defense of the Third Party Claim provides its response within such 30-day time period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Party Claim, without the consent of any Indemnified Party; provided, however, that the Indemnified Party shall not withhold its consent if such settlement or judgment involves solely the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this notice, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13. If the Indemnifying Party does not respond within 30 days, the Indemnified Party shall send a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the Indemnified Party within such 5 Business Days after the receipt of such second notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall meet or confer by telephone within 20 negotiate the resolution of the claim(s) for a period of not less than thirty (30) Business Days in an attempt in good faith to resolve after such disputeresponse is provided. If such Persons the Indemnifying Party and the Indemnified Party are unable to resolve any such claim(s) within such time period, the dispute, either Indemnifying Party or the Indemnified Party may act thereafter pursue any legal remedies available to resolve it with respect solely to the dispute in accordance with Section 32(bunresolved claim(s)., subject, to the extent applicable, to the Indemnification Deductible, the Indemnification Cap and the other provisions of this Article VII or Article X.

Appears in 1 contract

Samples: Stock Purchase Agreement (Dj Orthopedics Inc)

Indemnification Claim Procedure. Except as provided in Section 7.2.2 with respect to Third Party claims, in the event of a claim made by a Buyer Indemnitee or a Seller Indemnitee (i) Any the “Indemnified Party”), the Indemnified Party shall promptly notify give reasonably prompt written notice to the other Party or Parties alleged to be obligated to indemnify (the “Indemnifying Party”) in writing of any relevant pending or threatened Claim by a third party (a “Third Party Claim”), describing which notice (an “Indemnification Certificate”) shall: (a) state that the Indemnified Party has paid or properly accrued or reasonably anticipates that it will have to pay or accrue Losses that are subject to indemnification by the Indemnifying Party pursuant to Section 7.1.1 or Section 7.1.2, as applicable, and (b) specify in reasonable detail the facts individual items and circumstances with respect to the subject matter amounts of the Claim; provided, however, that delay in providing such notice shall not release the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b), except to the extent (and only to the extent) the delay actually and materially prejudices the Indemnifying Party’s ability to defend such Claim. (ii) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party by accepting its obligation to defend in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s fees and expenses) within 30 days of receiving notice of the Third Party Claim. If the Indemnifying Party declines, fails to respond to the notice, or fails to assume defense of the Third Party Claim within such 30-day period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoingLosses, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending date each such Third Party Claim) if the Third Party Claim seeks an order, injunction item was paid or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement ofproperly accrued, or the entry basis for such anticipated Liability, and a description of any judgment arising out the basis of or in connection with, any Third Party Claim, without the consent of any such Indemnified Party’s claim for indemnification; provided, however, that the failure to give reasonably prompt notice shall not relieve the applicable Indemnifying Party of its indemnification obligations under this Agreement except to the extent that the Indemnifying Party is materially prejudiced by any delay in receiving such notice. In the event that the Indemnifying Party agrees to or is determined to have an obligation to reimburse the Indemnified Party shall not withhold its consent if for Losses as provided in this Article 7, the Indemnifying Party shall, subject to the provisions of Section 7.3, promptly (but, in any event, within 30 calendar days) pay such settlement or judgment involves solely amount to the payment Indemnified Party by wire transfer of money, without any finding or admission of any violation of Law or admission of any wrongdoingimmediately available funds to the account specified in writing by the Indemnified Party. The Indemnifying Party shall pay or cause may defer making such payment if it objects in a written statement to be paid all amounts arising out of the claim made in the Indemnification Certificate and delivers such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify statement to the Indemnifying Party prior to the expiration of such 30- calendar day period. An Indemnifying Party’s failure to object within such 30- calendar day period to any claim set forth in an Indemnification Certificate shall be deemed to be the Indemnifying Party’s acceptance of, and waiver of any objections to, such claim. If an Indemnifying Party shall so object in writing of to any Claim for indemnification, describing claim or claims made in reasonable detail the basis for such Claim. Within 30 days following receipt of this noticeany Indemnification Certificate, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13. If the Indemnifying Party does not respond within 30 days, and the Indemnified Party shall send a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the Indemnified Party within such 5 Business Days after the receipt of such second notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall meet or confer by telephone within 20 Business Days in an attempt in good faith for a period of 20 calendar days following the Indemnified Party’s receipt of such objection notice to resolve agree upon the respective rights of the parties with respect to each of such disputeclaims. If no such Persons are unable to resolve the disputeagreement can be reached after such 20- calendar day period of good faith negotiation, either the Indemnifying Party or the Indemnified Party may act to resolve initiate Litigation for purposes of having the dispute matter settled in accordance with Section 32(b)the terms of this Agreement.

Appears in 1 contract

Samples: Asset Purchase Agreement (Ani Pharmaceuticals Inc)

Indemnification Claim Procedure. (ia) Any Promptly after becoming aware of the existence of any potential matter that a party hereto, acting in good faith, reasonably believes will entitle such party (the “Indemnified Party shall promptly notify the Party or Parties alleged Party”) to be obligated to indemnify indemnification from another party hereto (the “Indemnifying Party”) ), under this Article VIII, the Indemnified Party shall promptly provide to the Indemnifying Party notice describing the matter in writing reasonable detail, including the nature of the claim, the basis for the indemnification obligation and the Losses resulting therefrom (an “Indemnity Claim Notice”); provided, however, that the Shareholder Representative shall be deemed to be the Indemnified Party or the Indemnifying Party, as applicable, for purposes of sending or receiving Indemnity Claim Notices or Indemnity Claim Responses on behalf of the Company Shareholders or the Company Shareholder Indemnified Parties, as the case may be, and otherwise taking actions pursuant to this Section 8.4 and Section 8.5. To the extent that any relevant pending such matter relates to a Claim or threatened Proceeding by any Person other than an Indemnified Party, such Claim by a third party (or Proceeding is referred to herein as a “Third Party Claim”), describing in reasonable detail which is governed by Section 8.5. No delay on the facts and circumstances with respect to the subject matter part of the Claim; providedIndemnified Party in giving the Indemnifying Party an Indemnity Claim Notice shall limit or reduce the Indemnified Party’s right to indemnification hereunder, however, that delay in providing such notice shall not release nor relieve the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b)this Article VIII, except unless (and then only to the extent that) the Indemnifying Party is materially prejudiced thereby. (and only b) For claims for indemnification under this Article VIII other than those relating to Third Party Claims, the Indemnifying Party shall have 20 Business Days after its receipt of the Indemnity Claim Notice to respond to the extentclaim(s) the delay actually and materially prejudices described therein (an “Indemnity Claim Response”), which shall set forth, in reasonable detail, the Indemnifying Party’s ability to defend such Claim. (iiobjection(s) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party by accepting claim(s) and its obligation to defend in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s fees and expenses) within 30 days of receiving notice of the Third Party Claimbases for such objection(s). If the Indemnifying Party declines, fails to respond to the notice, or fails to assume defense of the Third Party provide an Indemnity Claim within Response with such 30-day time period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not will be entitled deemed to assume have conceded the defense of any Third Party claim(s) set forth in the Indemnity Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Party Claim, without the consent of any Indemnified Party; provided, however, that the Indemnified Party shall not withhold its consent if such settlement or judgment involves solely the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this notice, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13Notice. If the Indemnifying Party does not respond within 30 days, the Indemnified Party shall send a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If the Indemnifying Party does not notify the Indemnified Party provides an Indemnity Claim Response within such 5 Business Days after the receipt of such second notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) or Section 13(b)time period, as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall meet or confer by telephone within negotiate the resolution of the claim(s) for a period of not fewer than 20 Business Days in an attempt in good faith to resolve such disputeafter the Indemnity Claim Response is provided. If such Persons the Indemnifying Party and the Indemnified Party are unable to resolve any such claim(s) within such time period, the disputeIndemnified Party shall be entitled to pursue any legal remedies available to the Indemnified Party against the Indemnifying Party with respect solely to the unresolved claim(s), either Party may act subject to resolve the dispute limitations set forth in accordance with Section 32(b)8.3 and the other provisions of this Article VIII, as applicable.

Appears in 1 contract

Samples: Merger Agreement (On Assignment Inc)

Indemnification Claim Procedure. Except as provided in Section 5.2.2 with respect to Third Party claims, in the event of a claim made by a Buyer Indemnitee or a Seller Indemnitee (i) Any the “Indemnified Party”), the Indemnified Party shall promptly notify give reasonably prompt written notice to the other Party or Parties alleged to be obligated to indemnify (the “Indemnifying Party”) in writing of any relevant pending or threatened Claim by a third party (a “Third Party Claim”), describing which notice (an “Indemnification Certificate”) shall: (a) state that the Indemnified Party has paid or properly accrued or in good faith anticipates that it will have to pay or accrue Losses that are subject to indemnification by the Indemnifying Party pursuant to Section 5.1.1 or Section 5.1.2, as applicable, and (b) specify in reasonable detail the facts and circumstances with respect supporting the Indemnified Party’s claim for indemnification (to the subject matter extent known) and contain a non-binding preliminary, good faith estimate of the Claimamount to which the Indemnified Party claims to be entitled (to the extent known); provided, however, that delay in providing such the failure to give reasonably prompt notice shall not release relieve the applicable Indemnifying Party from any of its indemnification obligations under Section 13(a) or Section 13(b), this Agreement except to the extent (and only to the extent) the delay actually and materially prejudices the Indemnifying Party’s ability to defend such Claim. (ii) The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by that the Indemnifying Party forfeits rights or defenses by reason of such failure. In the event that the Indemnifying Party agrees to or is reasonably acceptable determined to have an obligation to indemnify or reimburse the Indemnified Party for Losses as provided in this ARTICLE 5 the Indemnifying Party shall, subject to the provisions of Section 5.2.2, promptly (but in any event, within 30 days of receipt of the Indemnification Certificate) pay such amount to the Indemnified Party by accepting its obligation wire transfer of immediately available funds to defend the account specified in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s fees and expenses) within 30 days of receiving notice of by the Third Party ClaimIndemnified Party. If the Indemnifying Party declinesobjects to all or a portion of the Indemnified Party’s claim made in the Indemnification Certificate, fails to respond the Indemnifying Party will notify the Indemnified Party of such objection by delivering a written statement (the “Objection Notice”) to the notice, or fails to assume defense Indemnifying Party within 30 days following receipt of the Third Indemnification Certificate. The Objection Notice shall indicate whether the Indemnifying Party Claim objects to all or only a portion of the claim specified in the Indemnification Certificate and shall specify in reasonable detail the facts and circumstances supporting the Indemnifying Party’s basis and reasons for such objection. An Indemnifying Party’s failure to deliver an Objection Notice in accordance with the provisions of this Section 5.2.1 within such 30-day periodperiod to any claim set forth in an Indemnification Certificate shall be deemed to be the Indemnifying Party’s acceptance of, then the Indemnified Party may control the defense and waiver of any objections to, such claim and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by be deemed to have agreed that an amount equal to the full claimed amount specified in the Indemnification Certificate is owed to the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iii) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Party Claim, without the consent of any Indemnified Party; provided, however, that the Indemnified Party shall not withhold its consent if such settlement or judgment involves solely the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Party Claim. (iv) For indemnification Claims other than Third Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this notice, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13. If the Indemnifying Party does not respond within 30 days, in its Objection Notice objects only to a portion of the Indemnified Party shall send a second notice claim set forth in the Indemnification Certificate (the amount of Losses claimed in the Indemnification Certificate to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”. If which the Indemnifying Party does not notify object shall be referred to herein as the “Agreed Amount”), then such Indemnifying Party shall, within 10 Business Days following the delivery of such Objection Notice pay the Agreed Amount to the Indemnified Party. If an Indemnifying Party shall provide Objection Notice in accordance with the provisions of this Section 5.2.1, the Indemnifying Party and the Indemnified Party within such 5 Business Days after the receipt of such second notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a) or Section 13(b), as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 13(a) or Section 13(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the Claim, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party shall meet or confer by telephone within 20 Business Days in an attempt in good faith for a period of 20 days following the Indemnified Party’s receipt of the Objection Notice to resolve agree upon the rights of the respective parties with respect to each of such disputeclaims. If no such Persons are unable to resolve the disputeagreement can be reached after such 20-day period of good faith negotiation, either the Indemnifying Party or the Indemnified Party may act to resolve initiate Litigation for purposes of having the dispute matter settled in accordance with Section 32(b)the terms of this Agreement.

Appears in 1 contract

Samples: Asset Purchase Agreement (Pdi Inc)

Indemnification Claim Procedure. (ia) Any Party asserting a claim for indemnification (the “Indemnified Party Party”) shall promptly notify the Party or Parties alleged to be obligated to indemnify (the “Indemnifying Party”) in writing of any relevant pending or threatened Claim by a third third-party (a “Third Third-Party Claim”), describing in reasonable detail the facts and circumstances with respect to the subject matter of the Claim; provided, however, that delay in providing such notice shall not release the Indemnifying Party from any of its obligations under Section 13(a) or Section 13(b)this Article 12, except to the extent (and only to the extent) the delay actually and materially prejudices the Indemnifying Party’s ability to defend such Claim. (iib) The Indemnifying Party may assume and control the defense of any Third Third-Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party by accepting its obligation to defend in writing and agreeing to pay defense costs (including reasonable out-of-pocket attorney’s fees and expenses) within 30 days of receiving notice of the Third Third-Party Claim. If the Indemnifying Party declines, fails to respond to the notice, or fails to assume defense of the Third Third-Party Claim within such 30-day period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all reasonable out-of-pocket defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Third-Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable out-of-pocket fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot reasonably be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. (iiic) The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising out of or in connection with, any Third Third-Party Claim, without the consent of any Indemnified Party; , provided, however, that the Indemnified Party shall not withhold its consent if such settlement or judgment involves solely the payment of money, without any finding or admission of any violation of Law or admission of any wrongdoing. The Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement and obtain, as a condition of any settlement or judgment, a complete and unconditional release of each relevant Indemnified Party from any and all liability in respect of such Third Third-Party Claim. (ivd) For indemnification Claims other than Third Third-Party Claims, the Indemnified Party promptly shall notify the Indemnifying Party in writing of any Claim for indemnification, describing in reasonable detail the basis for such Claim. Within 30 days following receipt of this notice, the Indemnifying Party shall respond, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Section 13. If the Indemnifying Party does not respond within 30 days, the Indemnified Party shall send a second notice to the Indemnifying Party, marked at the top in bold lettering with the following language: “A RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MASTER LEASE AGREEMENT WITH THE UNDERSIGNED AND FAILURE TO RESPOND SHALL RESULT IN YOUR RIGHT TO OBJECT BEING WAIVED” and the envelope containing the request must be marked “PRIORITY”Article 12. If the Indemnifying Party does not notify the Indemnified Party party within such 5 Business Days after the receipt of such second notice 30-day period that the Indemnifying Party disputes its liability to the Indemnified Party under Section 13(a12.1(a), Section 12.1(b), Section 12.2(a) or Section 13(b)12.2(b) , as applicable, such Claim specified by the Indemnified Party in such notice shall be conclusively deemed deeded a liability of the Indemnifying Party under Section 13(a12.1(a), Section 12.1(b), Section 12.2(a) or Section 13(b12.2(b), as applicable, and the Indemnifying Party shall pay the amount of such Claim to the Indemnified Party on demand or, in the case of any notice in which the amount of the Claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party timely disputes the existence or scope of an obligation to indemnify for the ClaimClaim within such 30-day period, it shall explain in reasonable detail the basis for the dispute. If the Parties disagree on the scope or existence of an indemnification obligation for the Claim, management representatives of the Indemnified Party and the Indemnifying Party Party, at the Vice President level or higher, shall meet or confer by telephone within 20 Business Days business days in an attempt in good faith to resolve such dispute. If such Persons are unable to resolve the dispute, either Party may act to resolve the dispute in accordance with Section 32(b)14.12 and Section 14.13. (e) The T‑Mobile Contributors and their Affiliates shall control the defense of all Claims related to Excluded Liabilities.

Appears in 1 contract

Samples: Master Agreement (T-Mobile US, Inc.)