Common use of Indemnification, Defense and Communication Procedures Clause in Contracts

Indemnification, Defense and Communication Procedures. Upon any Indemnitee becoming aware of anything which is or may give rise to a claim for indemnification or grounds for making a claim under this Article 8 or of any other claim, action or demand or matter likely to give rise to a claim for indemnification under this Agreement, the Indemnitee shall: (a) notify the Indemnitor by written notice as soon as reasonably practicable after it appears to the Indemnitee that any assessment or claim, action or demand of a third party received by or coming to the notice of the Indemnitee may result in a claim under this Article 8 or elsewhere in this Agreement, specifying all material details as are then available to the Indemnitee (provided, however, that an Indemnitee’s failure to notify does not release, reduce or otherwise affect the Indemnitor’s duty to indemnify, except to the extent of any actual prejudice suffered by the Indemnitor as a result of such failure to notify); (b) take such action and give such information and access to personnel, premises, property, documents and records to the Indemnitor and its professional advisers as the Indemnitor may reasonably request and the Indemnitor shall be entitled to require the Indemnitee to take such action and give such information and assistance in order to avoid, dispute, resist, mitigate, settle, compromise, defend or appeal any claim in respect thereof or adjudication with respect thereto, subject to the Indemnitor indemnifying the Indemnitee against all reasonable costs and expenses incurred by the Indemnitee in complying with any such request or requirement; (c) at the request of the Indemnitor and other than with respect to any action seeking specific performance or other equitable remedies, allow the Indemnitor to assume the defense of such actions, make any decision to arbitrate or settle any such action, and otherwise undertake the sole conduct of such actions as the Indemnitor may deem appropriate in connection with any such assessment or claim in the name of the Indemnitee, and in that connection the Indemnitee shall give or cause to be given to the Indemnitor all such assistance as the Indemnitor may reasonably require in avoiding, disputing, resisting, settling, compromising, defending or appealing any such claim and shall instruct such attorneys or other professional advisors as the Indemnitor may nominate to act on behalf of the Indemnitee, as appropriate, but to act in accordance with the Indemnitor’s sole instructions, subject to the Indemnitor’s indemnifying the Indemnitee against all costs and expenses incurred by the Indemnitee in complying with any such requirement; and (d) make no admission of liability, agreement, settlement or compromise with any third party in relation to any such claim or adjudication without the prior written consent of the Indemnitor (such consent not to be unreasonably withheld, conditioned or delayed). In the event that a claim is within the scope of the indemnities of two or more Indemnitors, each Indemnitor shall be responsible for the indemnity and defense and shall bear the costs of indemnity and defense to the extent of and in proportion to the coverage of its indemnity.

Indemnification, Defense and Communication Procedures. Upon any Indemnitee Indemnitee’s becoming aware of anything which is or may give rise to a claim for indemnification or grounds for making a claim under any of the indemnities under this Article 8 Agreement or of any other claim, action or demand against it or matter likely to give rise to a claim for indemnification under this Agreementany of these in respect of the indemnities, the Indemnitee shall: (a) notify the Indemnitor by written notice as soon as reasonably practicable after it appears to the Indemnitee that such Indemnitee has grounds for making a claim for indemnification or the Indemnitee receives any assessment or claim, action or demand of a third party received by or coming to the notice of the Indemnitee that may result in a claim under this Article 8 or elsewhere in this Agreementclaim, specifying all material relevant details as are then available to the Indemnitee (Indemnitee; provided, however, that an Indemnitee’s failure to notify does not release, reduce or otherwise affect the Indemnitor’s duty to indemnify, except to the extent of any actual prejudice suffered by the Indemnitor as a result of such failure to notify); (b) take such action and give such information and access to personnel, premises, property, documents and records to the Indemnitor and its professional advisers as the Indemnitor may reasonably request and request, with the Indemnitor shall be being entitled to require the Indemnitee to take such action and give such information and assistance as the Indemnitor may reasonably request, in order to avoid, dispute, resist, mitigate, settle, compromise, defend or appeal any claim in respect thereof or adjudication with respect thereto, subject to the Indemnitor indemnifying the Indemnitee against all reasonable costs and expenses incurred by the Indemnitee in complying with any such request or requirement; (c) subject to the other provisions of this Section 3.4, at the request of the Indemnitor and other than with respect to any action seeking specific performance or other equitable remediesIndemnitor, allow the Indemnitor to assume the defense of such actions, make any decision to arbitrate or Table of Contents settle any such action, and otherwise undertake the sole conduct of such actions as the Indemnitor may deem appropriate in connection with any such assessment or claim in the name of the Indemnitee, subject to the Indemnitor’s indemnifying the Indemnitee against any Losses which it may incur as a result of the manner in which the Indemnitor conducts such actions, and in that connection the Indemnitee shall give or cause to be given to the Indemnitor all such assistance as the Indemnitor may reasonably require in avoiding, disputing, resisting, settling, compromising, defending or appealing any such claim and shall instruct such attorneys or other professional advisors as the Indemnitor may nominate to act on behalf of the Indemnitee, as appropriate, but to act in accordance with the Indemnitor’s sole instructions, subject to the Indemnitor’s indemnifying the Indemnitee against all costs and expenses incurred by the Indemnitee in complying with any such requirement; and (d) make no admission of liability, agreement, settlement or compromise with any third party in relation to any such claim or adjudication without the prior written consent of the Indemnitor. Notwithstanding the foregoing, the Indemnitor shall not have the right to assume the defense of any indemnification claim if it contests in writing, in whole or in part, its indemnification obligations for such claim. If the Indemnitor is Seller, Seller shall not have the right to defend or compromise any such claim if (1) the claim relates to or arises in connection with any criminal proceeding, action, indictment, or allegation or investigation or (2) the claim is subject to the limitations set forth in Section 3.1(a) and specifically asserts an amount of Losses that, when taken together with all amounts paid to the Buyer Indemnified Parties for resolved indemnification claims that are subject to such consent not to be unreasonably withheldlimitations and the maximum aggregate amount of Losses in all other unresolved indemnification claims that are subject such limitations, conditioned or delayed)exceeds the Cap Amount. In the event that a claim is within the scope of the indemnities of two or more Indemnitors, each Indemnitor shall be responsible for the indemnity and defense and shall bear the costs of indemnity and defense to the extent of and in proportion to the coverage of its indemnityindemnification obligations under this Article 3. Prior to the Indemnitor’s electing to assume the defense of any action, the Indemnitee may (at the Indemnitor’s expense) make such filings, including motions for continuance (and answers if a motion for continuance has not been granted), as may be necessary to preserve the parties’ positions and rights with respect to such claims. If the Indemnitor elects to assume the defense of and indemnification for any such matter, then counsel for the Indemnitor, who shall in such case conduct the defense of such claim, shall be approved by the Indemnitee (whose approval shall not unreasonably be withheld, conditioned or delayed), and the Indemnitee may participate in such defense at its own expense, and may retain counsel of its choice at its own expense; provided, however, that when claims are asserted in the same proceeding against both the Indemnitee and the Indemnitor, the Indemnitee shall have the right to employ, at the Indemnitor’s expense, one firm of counsel of its choice to represent the Indemnitee if the Indemnitor (i) elects not to or is not entitled to defend, compromise of settle a third party claim, (ii) having timely elected to defend a third party claim, fails adequately to prosecute or pursue such defense or (iii) a defense exists for an Indemnitee that is not available to the Indemnitor. The Indemnitor, in the defense of any such litigation or proceeding, shall not, except with the prior written approval of the Indemnitee (which approval shall not be unreasonably withheld, conditioned or delayed), consent to entry of any judgment or entry into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a release from all liability with respect to the Table of Contents indemnified matter. The Indemnitee shall not settle or compromise any such claim without the prior written approval of the Indemnitor, which approval shall not be unreasonably withheld, conditioned or delayed.