Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") under this Article 10 will be asserted and resolved as follows: (a) In the event any claim or demand, for which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, is asserted against or sought to be collected from such Indemnified Party by a person other than Seller, Purchaser or their affiliates (a "Third Party Claim"), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interests, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim. The Indemnifying Party will notify the Indemnified Party within thirty (30) calendar days after receipt of the Claim Notice (the "Notice Period") whether the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such Third Party Claim. (i) If the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a), then, subject to the immediately succeeding sentence, the Indemnifying Party will have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party. To the extent the Claim is solely for money damages, the Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing, the Indemnified Party may, at its sole cost and expense, file during the Notice Period any motion, answer or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participation. (ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 10.4(a), or if the Indemnifying Party gives such notice but fails to prosecute diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to the Indemnifying Party of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate therein. (b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been prejudiced thereby.
Appears in 1 contract
Samples: Asset Sale Agreement (Southwest General Hospital Lp)
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 Section 6.01 will be asserted and resolved as follows:
(a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under Section 6.01 is asserted against or sought to be collected from such Indemnified Party by a person Person other than Seller, a Purchaser or their affiliates Indemnified Party (a "“Third Party Claim"”), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim, but only to the extent that the Indemnifying Party’s ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (Dispute Period whether the "Notice Period") Indemnifying Party disputes its liability to the Indemnified Party under Section 6.02 and whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a6.02(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be reasonably and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying PartyParty (but only with the consent of the Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damages or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full by reason of Section 6.03). To the extent the Claim is solely for money damages, the The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing; provided, however, that the Indemnified Party may, at its the sole cost and expenseexpense of the Indemnified Party, at any time subsequent to the delivery of a Claim Notice to the Indemnified Party and prior to the Indemnifying Party’s delivery of the notice referred to in the first sentence of this Section 6.02(a)(i), file during the Notice Period any motion, answer or other pleadings or take any other action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party interests; and which is not prejudicialprovided further, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, that if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest; and provided, orfurther, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than that the Indemnified Party or any may choose separate counsel at the sole cost and expense of its affiliates)the Indemnifying Party in the event that a conflict of interest arises between the Indemnified Party and the Indemnifying Party. The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i6.02(a)(i), and except as specifically provided in this Section 10.4(a)(i)the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under Section 6.02 with respect to such Third Party Claim.
(ii) If the Indemnifying Party fails to notify assume the Indemnified defense of the Third Party Claim within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 10.4(a), or if the Indemnifying Party gives such notice but fails to prosecute reasonably and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to in a final conclusion reasonable manner and in good faith or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii6.02(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying PartyParty in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's ’s defense pursuant to this Section 10.4(a)(ii6.02(a)(ii) or of the Indemnifying Party's ’s participation therein at the Indemnified Party's ’s request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii6.02(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The .
(iii) If the Indemnifying Party notifies the Indemnified Party shall give sufficient prior that it does not dispute its liability to the Indemnified Party with respect to the Third Party Claim under Section 6.02, or if the Indemnifying Party fails to deliver a notice to the Indemnifying Indemnified Party within the Dispute Period, then the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party under Section 6.02 and the Indemnifying Party shall pay the amount of such Loss to participate thereinthe Indemnified Party on demand. Purchaser shall have the right to set off any amounts Seller owes it under this Section 6.02 against the Purchase Price or the Earnout.
(b) In the event any Indemnified Party should have has a claim under Section 6.02 against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's ’s rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice, or if the Indemnifying Party fails to deliver a notice to the Indemnified Party within the Dispute Period, then the Loss in the amount specified in the Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under Section 6.02 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 Section 8.1 will be asserted and resolved as follows:
(a) In the event order for an Indemnified Party to be entitled to any indemnification provided for under Section 8.1 in respect of, arising out of or involving a claim or demand, for which demand made by any Person not a party hereto (an "Indemnifying Party") would be liable for to this Agreement against the Damages to an Indemnified Party, is asserted against or sought to be collected from such Indemnified Party by a person other than Seller, Purchaser or their affiliates (a "Third Party Claim"), the Indemnified Party shall must deliver a notice of its claim (a "Claim Notice") Notice to the Indemnifying Party within thirty (30) calendar days 30 Business Days after the receipt by such Indemnified 49 61 Party receives of written notice of such the Third Party Claim; provided, however, that notice failure to give such Claim Notice shall be not affect the indemnification provided hereunder except to the extent the Indemnifying Party within fifteen (15) calendar days after receipt of shall have been actually prejudiced as a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period after the Indemnified Party receives notice result of such failure.
(b) If a Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interests, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim. The Indemnifying Party will notify the Indemnified Party within thirty (30) calendar days after receipt of the Claim Notice (the "Notice Period") whether the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party is made against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a), then, subject to the immediately succeeding sentence, the Indemnifying Party will have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party. To the extent the Claim is solely for money damages, the Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing, the Indemnified Party may, at its sole cost and expense, file during the Notice Period any motion, answer or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will shall be relieved of its obligations hereunder entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested counsel selected by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, which counsel must be reasonably satisfactory to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participation.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 10.4(a), or if the Indemnifying Party gives such notice but fails to prosecute diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, provided that if requested by the Indemnified 50 62 Party, the all Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability to the Indemnified Party Parties with respect to such Third Party Claim and if such dispute is resolved jointly acknowledge to the Indemnified Party its right to indemnity pursuant hereto in favor respect of the entirety of such claim (as such claim may be modified through written agreement of the parties or arbitration hereunder) and provide assurances reasonably satisfactory to the Indemnified Party that the Indemnifying PartyParties will be financially able to satisfy such claim in full if it is decided adversely. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will shall not be required liable to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and legal expenses subsequently incurred by the Indemnifying Indemnified Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(iidefense thereof (except as hereinafter provided), but shall continue to pay for any expenses of investigation or any Loss suffered. If the Indemnifying Party may participate inassumes such defense, but not control, any defense or settlement controlled by the Indemnified Party pursuant shall have the right to this Section 10.4(a)(iiparticipate in the defense thereof and to employ counsel, at its own expense (except as hereinafter provided), and separate from the counsel employed by the Indemnifying Party. Notwithstanding the foregoing, if (i) the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to not assume the Indemnifying Party of the initiation of any discussions relating to the settlement defense of a Third Party Claim with counsel satisfactory to allow the Indemnified Party within five Business Days of any Claim Notice, or (ii) legal counsel for the Indemnified Party notifies the Indemnifying Party that there are or may be legal defenses available to participate thereinthe Indemnified Party or to other Indemnified Parties which are different from or additional to those available to the Indemnifying Party, which, if the Indemnified Party and the Indemnifying Party were to be represented by the same counsel, would constitute a conflict of interest for such counsel or prejudice prosecution of the defenses available to such Indemnified Party, or (iii) if the Indemnifying Party shall assume the defense of a Third Party Claim and fail to diligently and vigorously prosecute such defense in a timely manner, then in each such case the Indemnified Party, by notice to the Indemnifying Party, may employ its own counsel and control the defense of the Third Party Claim and the Indemnifying Party shall be liable for the reasonable fees, charges and disbursements of counsel employed by the Indemnified Party; and the Indemnified Party shall be promptly reimbursed for any such fees, charges and disbursements, as and when incurred. Whether the Indemnifying Party or the Indemnified Party control the defense of any Third Party Claim, the parties hereto shall cooperate in the defense thereof. Such cooperation shall include the retention and provision to the counsel of the controlling party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party shall have the right to settle, compromise or discharge a Third Party Claim (other than any such Third Party Claim in which criminal conduct is alleged) without the Indemnified Party's consent if such settlement, compromise or discharge (i) constitutes a complete and unconditional discharge and release of all Indemnified Parties, and (ii) provides for no relief other than the payment of monetary damages and such monetary damages are paid in full by the Indemnifying Party, and in all other cases may not so settle without the prior written consent of the Indemnified Party.
(bc) In the event any Indemnified Party should have a claim under Section 8.1 against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been actually prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period as to whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Loss in the amount specified in the Indemnity Notice will be conclusively deemed a Liability of the Indemnifying Party under Section 8.1 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand. If the Indemnifying Party has timely disputed its Liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by arbitration as provided in Article 10.
(d) The rights accorded to Indemnified Parties hereunder shall be in addition to any rights that any Indemnified Party may have at law or in equity, under federal or state securities Laws or by separate agreement (including, without limitation, under the Operative Agreements).
(e) Any payment under this Article 8 shall be treated for tax purposes as an adjustment of the Purchase Price to the extent such characterization is proper and permissible under relevant Tax authorities, including court decisions, statutes, regulations and administrative promulgations or, alternatively, by Purchaser as an offset to a Tax benefit item, if such characterization is permissible under such Tax authorities.
Appears in 1 contract
Samples: Asset Purchase Agreement (Homecom Communications Inc)
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 Section 9.1 will be asserted and resolved as follows:
(a) In the event order for an Indemnified Party to be entitled to any indemnification provided for under Section 9.1 in respect of, arising out of or involving a claim or demand, for which demand made by any Person not a party hereto (an "Indemnifying Party") would be liable for to this Agreement against the Damages to an Indemnified Party, is asserted against or sought to be collected from such Indemnified Party by a person other than Seller, Purchaser or their affiliates (a "Third Party Claim"), the Indemnified Party shall must deliver a notice of its claim (a "Claim Notice") Notice to the Indemnifying Party within thirty (30) calendar days 30 Business Days after the receipt by such Indemnified 49 61 Party receives of written notice of such the Third Party Claim; providedPROVIDED, howeverHOWEVER, that notice failure to give such Claim Notice shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party shall be provided entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party, which counsel must be reasonably satisfactory to the Indemnified Party. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, but shall continue to pay for any expenses of investigation or any Loss suffered. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in such defense and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. If (i) the Indemnifying Party shall not assume the defense of a Third Party Claim with counsel reasonably satisfactory to the Indemnified Party within five Business Days of any Claim Notice, or (ii) legal counsel for the Indemnified Party notifies the Indemnifying Party that there are or may be legal defenses available to the Indemnified Party or to other Indemnified Parties which are different from or additional to those available to the Indemnifying Party, which, if the Indemnified Party within fifteen and the Indemnifying Party were to be represented by the same counsel, would constitute a conflict of interest for such counsel or prejudice prosecution of the defenses available to such Indemnified Party, or (15iii) calendar days after receipt if the Indemnifying Party shall assume the defense of a complaintThird Party Claim and fail to diligently prosecute such defense, petition or institution then in each such case the Indemnified Party, by notice to the Indemnifying Party, may employ its own counsel and control the defense of other formal legal action the Third Party Claim and the Indemnifying Party shall be liable for the reasonable fees, charges and disbursements of counsel employed by the Indemnified Party. If ; and the Indemnified Party fails to provide shall be promptly reimbursed for any such fees, charges and disbursements, as and when incurred. Whether the Claim Notice within such applicable time period after Indemnifying Party or the Indemnified Party receives notice controls the defense of such any Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated parties hereto shall cooperate in the defense thereof. Such cooperation shall include the retention and provision to indemnify the Indemnified Party with respect counsel of the controlling party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will notify the Indemnified Party within thirty (30) calendar days after receipt of the Claim Notice (the "Notice Period") whether the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a), then, subject to the immediately succeeding sentence, the Indemnifying Party will shall have the right to defendsettle, at its sole cost and expense, compromise or discharge a Third Party Claim (other than any such Third Party Claim by all appropriate proceedings, in which proceedings will be prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party. To the extent the Claim criminal conduct is solely for money damages, the Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing, the Indemnified Party may, at its sole cost and expense, file during the Notice Period any motion, answer or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(iialleged) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by without the Indemnified Party's action. If requested consent if such settlement, compromise or discharge (i) constitutes a complete and unconditional discharge and release of the Indemnified Party, and (ii) provides for no relief other than the payment of monetary damages and such monetary damages are paid in full by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participation.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 10.4(a), or if the Indemnifying Party gives such notice but fails to prosecute diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to the Indemnifying Party of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate therein.
(bc) In the event any Indemnified Party should shall have a claim under Section 9.1 against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been materially prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Loss in the amount specified in the Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under Section 8.1 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(d) The rights accorded to Indemnified Parties hereunder shall be in addition to any rights that any Indemnified Party may have at law or in equity, under federal and state securities laws, by separate agreement (including, without limitation, under the Operative Agreements) or otherwise.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 Section 10.01 will be asserted and resolved as follows:
(a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under Section 10.01 is asserted against or sought to be collected from such Indemnified Party by a person Person other than Seller, either Seller or Purchaser or any of their affiliates respective Affiliates (a "“Third Party Claim"”), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim to the extent that the Indemnifying Party’s ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (Dispute Period whether the "Notice Period") Indemnifying Party disputes its liability to the Indemnified Party under Section 10.01 and whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a10.02(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying PartyParty (but only with the consent of the Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damages as to which the Indemnified Party will be indemnified in full). To The Indemnifying Party will be deemed to have waived its right to dispute its liability to the extent Indemnified Party under Section 10.01 with respect to any Third Party Claim as to which it elects to control the Claim is solely for money damages, the defense. The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing; provided, however, that the Indemnified Party may, at its the sole cost and expenseexpense of the Indemnified Party, at any time prior to the Indemnifying Party’s delivery of the notice referred to in the first sentence of this Section 10.02(a)(i), file during the Notice Period any motion, answer or other pleadings or take any other action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party interests; and which is not prejudicialprovided further, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, that if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, will provide reasonable cooperation to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i10.02(a)(i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participationseparate counsel except as provided in the preceding sentence. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under Section 10.01 with respect to such Third Party Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Third Party Claim pursuant to this Section 10.4(a10.02(a), or if the Indemnifying Party gives such notice but fails to prosecute vigorously and diligently the defense of, or settle settle, the Third Party Claim, or if the Indemnifying Third Party fails to give any notice whatsoever within Claim seeks an order, injunction or other equitable relief against the Notice PeriodIndemnified Party which could materially interfere with the business, operations, assets, condition or prospects of the Indemnified Party, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion in good faith or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, will provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related .
(iii) If the Indemnifying Party notifies the Indemnified Party that it does not dispute its liability to the Indemnified Party with respect to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, under Section 8.04 or any cross-complaint against any person (other than the Indemnifying Party 10.01 or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii), if the Indemnifying Party has notified fails to notify the Indemnified Party with reasonable promptness that within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss arising from such Third Party Claim and if such dispute is resolved in favor will be conclusively deemed a liability of the Indemnifying PartyParty under Section 10.01 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse proceed in good faith to negotiate a resolution of such dispute within the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to the Indemnifying Party of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate thereinResolution Period.
(b) In the event any Indemnified Party should have a claim under Section 10.01 against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's ’s rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in bears to the portion of such claim determined not to be so payable.
Appears in 1 contract
Samples: Asset Purchase Agreement (Nevada Gold & Casinos Inc)
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") under this Article 10 will be asserted and resolved as follows:
(a) In the event any claim or demand, for which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, is asserted against or sought to be collected from such Indemnified Party by a person other than Seller, Purchaser or their affiliates (a "Third Party Claim"), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives written notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period after the Indemnified Party receives written notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interests, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim. The Indemnifying Party will notify the Indemnified Party within thirty (30) calendar days after receipt of the Claim Notice (the "Notice Period") whether the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a), then, subject to the immediately succeeding sentence, the Indemnifying Party will have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party. To the extent the Third Party Claim is solely for money damages, the Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing, the Indemnified Party may, at its sole cost and expense, file during the Notice Period any motion, answer or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participation.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 10.4(a), or if the Indemnifying Party gives such notice but fails to prosecute diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to the Indemnifying Party of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate therein.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been prejudiced thereby.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "“Indemnified Party"”) under this Article 10 12 will be asserted and resolved as follows:
(a) In the event any claim or demand, for which a party hereto (an "“Indemnifying Party"”) would be liable for the Damages to an Indemnified Party, is asserted against or sought to be collected from such Indemnified Party by a person other than Sellerthe Sellers, Purchaser the Purchasers or their affiliates (a "“Third Party Claim"”), the Indemnified Party shall deliver a notice of its claim (a "“Claim Notice"”) to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives written notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period after the Indemnified Party receives written notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ’s ability to protect its interests, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim. The Indemnifying Party will notify the Indemnified Party within thirty (30) calendar days after receipt of the Claim Notice (the "“Notice Period"”) whether the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a12.4(a), then, then subject to the immediately succeeding sentence, sentence the Indemnifying Party will have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party. To the extent the Third Party Claim is solely for money damages, the Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing, the Indemnified Party may, at its sole cost and expense, file during the Notice Period any motion, answer or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii12.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's ’s action. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i12.4(a)(i), and except as specifically provided in this Section 10.4(a)(i12.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participation.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 10.4(a), or if the Indemnifying Party gives such notice but fails to prosecute diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to the Indemnifying Party of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate therein.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been prejudiced thereby.
Appears in 1 contract
Samples: Asset Purchase Agreement (Vanguard Health Systems Inc)
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") under this Article 10 will Party shall be asserted and resolved as follows:
(a) In the event any claim or demand, for which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, demand is asserted against or sought to be collected from such Indemnified Party by a person Person other than Seller, Purchaser or their affiliates a party hereto (a "“Third Party Claim"”), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will shall not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim to the extent that the Indemnifying Party’s ability to defend has been irreparably and materially prejudiced by such failure of the Indemnified Party. The Indemnifying Party will shall notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (Dispute Period whether the "Notice Period") Indemnifying Party disputes its liability to the Indemnified Party under Section 7.02 or Section 7.03, as the case may be, and whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party pursuant to the preceding sentence that the Indemnifying Party desires to defend the Indemnified Party against the Third Party Claim, then the Indemnifying Party shall provide reasonable assurance of the Indemnifying Party’s ability to pay the Third Party Claim. Anything to the contrary in this Article 7 notwithstanding (including this Section 7.05), the Parent shall retain the right to control in all respects any Action, matter or other proceeding relating to Taxes, regardless of whether the Seller Group is obligated to indemnify the Parent with respect to such Action, matter or other proceeding.
(ib) If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a7.05, and provides the reasonable assurance described in the penultimate sentence of Section 7.05(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will shall have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will shall be vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or will shall be settled at the discretion of the Indemnifying Party (but only with the consent of the Indemnified Party, which shall not be unreasonably withheld, in the case of any settlement that provides for any relief other than the payment of monetary damages or that provides for the payment of monetary damages as to which the Indemnified Party shall not be indemnified in full pursuant to Section 7.02 or Section 7.03, as applicable). To the extent the Claim is solely for money damages, the The Indemnifying Party will shall have full control of such defense and proceedings; provided, including any compromise or settlement thereof. Notwithstanding the foregoinghowever, that the Indemnified Party may, at its the sole cost and expenseexpense of the Indemnified Party, at any time prior to the Indemnifying Party’s delivery of the notice referred to in the first sentence of this clause (b), file during the Notice Period any motion, answer or other pleadings or take any other action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party interests; and which is not prejudicialprovided further, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, that if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agreesshall, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i7.05(b), and except as specifically provided in this Section 10.4(a)(i)the preceding sentence, the Indemnified Party will shall bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under Section 7.02 or Section 7.03, as applicable, with respect to such Third Party Claim.
(iic) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Third Party Claim pursuant to this Section 10.4(a7.05(b), or if the Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the Indemnifying Party fails gives notice that it elects not to give any notice whatsoever within defend the Notice PeriodThird Party Claim, then the Indemnified Party will shall have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will shall be promptly and reasonably prosecuted by the Indemnified Party to in a final conclusion reasonable manner and in good faith or will shall be settled at the discretion of the Indemnified Party. The Indemnified Party will shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agreesshall, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which that the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to the Indemnifying Party of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate therein.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been prejudiced thereby.this
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 will Section 11.1 shall be asserted and resolved as follows:
(a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under Section 11.1 is asserted against or sought to be collected from such Indemnified Party by a person Person other than Seller, Seller or any Affiliate of Seller or of Purchaser or their affiliates (a "Third Party Claim"), the Indemnified Party shall promptly deliver a notice of its claim (a "Claim Notice") Notice to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to promptly provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will shall not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The Indemnifying Party will shall notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (Dispute Period whether the "Notice Period") Indemnifying Party disputes its liability to the Indemnified Party under Section 11.1 and whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a11.2(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will shall have the right to defend, with counsel selected by the Indemnifing Party and reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will shall be vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or will shall be settled at the discretion of the Indemnifying Party (but only with the consent of the Indemnified Party, which consent shall not be unreasonably withheld, in the case of any settlement that provides for any relief other than the payment of monetary damages as to which the Indemnified Party shall be indemnified in full). To the extent the Claim is solely for money damages, the In such event Indemnifying Party will shall be deemed to have waived its right to dispute its liability to the Indemnified Party under Section 11.1 with respect to any Third Party Claim as to which it elects to control the defense. The Indemnifying Party shall have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing; provided, however, that the Indemnified Party may, at its the sole cost and expenseexpense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this Section 11.2(a)(i), file during the Notice Period any motion, answer or other pleadings or take any other action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicialinterests; provided, in the reasonable judgment of the Indemnifying Partyfurther, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereofhowever, that if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, shall provide reasonable cooperation to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may retain separate counsel to represent it and participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i11.2(a)(i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will shall bear its own costs and expenses with respect to such participationseparate counsel unless (x) the Indemnifying Party shall have agreed to pay those fees and expenses, (y) the Indemnifying Party shall have failed to assume and carry out the defense of the Third Party Claim or shall have failed to employ counsel selected by the Indemnifing Party and reasonably satisfactory to the Indemnified Party in the Third Party Claim, or (z) the named parties in the Third Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party shall on any grounds reasonably determine (including, without limitation, upon advice of counsel) that there may be one or more legal defenses available to the Indemnified Party that are different from or additional to those available to the Indemnifying Party (in which case, if the Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense of such Third Party Claim or proceeding on behalf of the Indemnified Party, it being understood, however, that the Indemnifying Party shall not, in connection with any one action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for the Indemnified Party, which firm shall be designated in writing by the Indemnified Party). Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under Section 11.1 with respect to such Third Party Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Third Party Claim pursuant to this Section 10.4(a11.2(a), or if the Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the Indemnifying Third Party fails to give any notice whatsoever within Claim seeks an order, injunction or other equitable relief against the Notice PeriodIndemnified Party which could materially interfere with the business, operations, assets, condition or prospects of the Indemnified Party, then the Indemnified Party will shall have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will shall be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion in good faith or will shall be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent shall not be unreasonably withheld). The Indemnified Party will shall have full control of such defense and proceedings, including including, without limitation, any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agrees, at the sole cost shall provide reasonable cooperation and expense of the Indemnifying Party, assistance to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii11.2(a)(ii), and the Indemnifying Party will shall bear its own costs and expenses with respect to such participation. The If the Indemnifying Party notifies the Indemnified Party that it does not dispute its liability to the Indemnified Party with respect to the Third Party Claim under Section 11.1 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss arising from such Third Party Claim shall be conclusively deemed a liability of the Indemnifying Party under Section 11.1 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party shall give sufficient prior notice proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Indemnifying Party of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate thereinResolution Period, such dispute shall be resolved by arbitration in accordance with Section 11.2(c).
(b) In the event any Indemnified Party should have a claim under Section 11.1 against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Loss arising from the claim specified in such Indemnity Notice shall be conclusively deemed a liability of the Indemnifying Party under Section 11.1 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party shall proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by arbitration in accordance with Section 11.2(c).
(c) Any dispute submitted to arbitration pursuant to this Section 11.2 shall be finally and conclusively determined by the decision of a board of arbitration consisting of three members (hereinafter sometimes called the "Board of Arbitration") selected as hereinafter provided. Each of the Indemnified Party and the Indemnifying Party shall select one member and the third member shall be selected by mutual agreement of the other members, or if the other members fail to reach agreement on a third member within 20 days after their selection, such third member shall thereafter be selected by the American Arbitration Association upon application made to it for a third member possessing expertise or experience appropriate to the dispute jointly by the Indemnified Party and the Indemnifying Party. The Board of Arbitration shall meet in New York City or such other place as a majority of the members of the Board of Arbitration determines more appropriate, and shall reach and render a decision in writing (concurred with by a majority of the members of the Board of Arbitration) with respect to the amount, if any, which the Indemnifying Party is required to pay to the Indemnified Party in respect of a claim filed by the Indemnified Party. In connection with rendering its decisions, the Board of Arbitration shall adopt and follow such rules and procedures as a majority of the members of the Board of Arbitration deems necessary or appropriate. To the extent practical, decisions of the Board of Arbitration shall be rendered no more than 30 days following commencement of proceedings with respect thereto. The Board of Arbitration shall cause its written decision to be delivered to the Indemnified Party and the Indemnifying Party. Any decision made by the Board of Arbitration (either prior to or after the expiration of such 30 day period) shall be final, binding and conclusive on the Indemnified Party and the Indemnifying Party and entitled to be enforced by either such party to the fullest extent permitted by law and entered in any court of competent jurisdiction. Each party to any arbitration shall bear its own expense in relation thereto, including but not limited to such party's attorneys' fees, if any, and the expenses and fees of the Board of Arbitration shall be divided between the Indemnifying Party and the Indemnified Party in the same proportion as the portion of the related claim determined by the Board of Arbitration to be payable to the Indemnified Party bears to the portion of such claim determined not to be so payable.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 Section 11.01 will be asserted and resolved as follows:
(a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under Section 11.01 is asserted against or sought to be collected from such Indemnified Party by a person Person other than Seller, Seller or any Affiliate of Seller or of Parent or Purchaser or their affiliates (a "Third Party Claim"), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (Dispute Period whether the "Notice Period") Indemnifying Party disputes its liability to the Indemnified Party under Section 11.01 and whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a11.02(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party (but only with the consent of the Indemnified Party, which consent will not be unreasonably withheld, in the case of any settlement that provides for any relief other than the payment of monetary damages as to which the Indemnified Party will be indemnified in full). To The Indemnifying Party will be deemed to have waived its right to dispute its liability to the extent Indemnified Party under Section 11.01 with respect to any Third Party Claim as to which it elects to control the Claim is solely for money damages, the defense. The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing; provided, however, that the Indemnified Party may, at its the sole cost and expenseexpense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this Section 11.02(a)(i), file during the Notice Period any motion, answer or other pleadings or take any other action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party interests; and which is not prejudicialprovided further, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, that if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i11.02(a)(i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participationseparate counsel except as provided in the preceding sentence and except that the Indemnifying Party will pay the costs and expenses of such separate counsel if (x) in the Indemnified Party's reasonable judgment, the Indemnified Party should be represented by separate counsel because a conflict or potential conflict exists between the Indemnifying Party and the Indemnified Party or (y) the named parties to such Third Party Claim include both the Indemnifying Party and the Indemnified Party and the Indemnified Party reasonably determines that defenses are available to it that are unavailable to the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under Section 11.01 with respect to such Third Party Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Third Party Claim pursuant to this Section 10.4(a11.02(a), or if the Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion vigorously and diligently or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii11.02(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to .
(iii) If the Indemnifying Party of notifies the initiation of any discussions relating Indemnified Party that it does not dispute its liability to the settlement of a Indemnified Party with respect to the Third Party Claim under Section 11.01 or fails to allow notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to participate thereinthe Indemnified Party with respect to such Third Party Claim, the Loss arising from such Third Party Claim will be conclusively deemed a liability of the Indemnifying Party under Section 11.01 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will attempt in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by arbitration in accordance with Section 11.02(c).
(b) In the event any Indemnified Party should have a claim under Section 11.01 against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Loss arising from the claim specified in such Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under Section 11.01 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will attempt in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by arbitration in accordance with Section 11.02(c).
(c) Any dispute submitted to arbitration pursuant to this Section 11.02 shall be finally and conclusively determined by the decision of a board of arbitration consisting of three (3) members (hereinafter sometimes called the "Board of Arbitration") selected as hereinafter provided. Each of the Indemnified Party and the Indemnifying Party shall select one (1) member and the third member shall be selected by mutual agreement of the other members, or if the other members fail to reach agreement on a third member within twenty (20) days after their selection, such third member shall thereafter be selected by the International Chamber of Commerce upon application made to it for a third member jointly by the Indemnified Party and the Indemnifying Party. Each member of the Board of Arbitration shall have knowledge and expertise in the subject matter of the arbitration proceeding. The Board of Arbitration shall meet in New York, New York or such other place as a majority of the members of the Board of Arbitration determines more appropriate, and shall reach and render a decision in writing (concurred in by a majority of the members of the Board of Arbitration) with respect to the amount, if any, which the Indemnifying Party is required to pay to the Indemnified Party in respect of a claim filed by the Indemnified Party. In connection with rendering its decisions, the Board of Arbitration shall adopt and follow such rules and procedures as a majority of the members of the Board of Arbitration deems necessary or appropriate. To the extent practical, decisions of the Board of Arbitration shall be rendered no more than thirty (30) days following commencement of proceedings with respect thereto. The Board of Arbitration shall cause its written decision to be delivered to the Indemnified Party and the Indemnifying Party. Any decision made by the Board of Arbitration (either prior to or after the expiration of such thirty (30) day period) shall be final, binding and conclusive on the Indemnified Party and the Indemnifying Party and entitled to be enforced to the fullest extent permitted by law and entered in any court of competent jurisdiction. Each party to any arbitration shall bear its own expense in relation thereto, including but not limited to such party's attorneys' fees, if any, and the expenses and fees of the member of the Board of Arbitration appointed by such party, provided, however, that the expenses and fees of the third member of the Board of Arbitration and any other expenses of the Board of Arbitration not capable of being attributed to any one member shall be borne in equal parts by the Indemnifying Party and the Indemnified Party.
Appears in 1 contract
Samples: Stock Purchase Agreement (Standard Microsystems Corp)
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 will SECTION 11.01 shall be asserted and resolved only as follows:
(a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under SECTION 11.01 is asserted against or sought to be collected from such Indemnified Party by a person Person other than Seller, a Seller or any Affiliate of a Seller or of Purchaser or their affiliates (a "Third Party ClaimTHIRD PARTY CLAIM"), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (Dispute Period whether the "Notice Period") Indemnifying Party disputes its liability to the Indemnified Party under SECTION 11.01 and whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(aSECTION 11.02(A), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party (but only with the consent of the Indemnified Party, which consent will not be unreasonably withheld, in the case of any settlement that provides for any relief other than the payment of monetary damages as to which the Indemnified Party will be indemnified in full). To The Indemnifying Party will be deemed to have waived its right to dispute its liability to the extent Indemnified Party under SECTION 11.01 with respect to any Third Party Claim as to which it elects to control the Claim is solely for money damages, the defense. The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing; PROVIDED, HOWEVER, that the Indemnified Party may, at its the sole cost and expenseexpense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this SECTION 11.02(A)(I), file during the Notice Period any motion, answer or other pleadings or take any other action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party interests; and which is not prejudicialprovided further, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, that if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participation.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 10.4(a), or if the Indemnifying Party gives such notice but fails to prosecute diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to the Indemnifying Party of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate therein.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been prejudiced thereby.this
Appears in 1 contract
Samples: Purchase and Sale Agreement (Fitzgeralds Gaming Corp)
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 VI will be asserted and resolved as follows:
(a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under Article VI is asserted against or sought to be collected from such Indemnified Party by a person Person other than Sellerthe Company, Purchaser any Subsidiary, any Investor or their affiliates any Affiliate of the Company or any Investor (a "Third Party Claim"), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (Dispute Period whether the "Notice Period") Indemnifying Party disputes its liability to the Indemnified Party under this Article VI and whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a6.03(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying PartyParty (but only with the consent of the Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damages or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full pursuant to this Article VI). To the extent the Claim is solely for money damages, the Indemnifying The In demnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding thereof (subject to the foregoing, consent of the Indemnified Party mayin the case of any settlement that provides for any relief other than the payment of monetary damages or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full pursuant to this Article VI); provided, however, that the Indemnified Party, at its the sole cost and expenseexpense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this clause (i), may file during the Notice Period any motion, answer or other pleadings or take any other action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party interests; and which is not prejudicialprovided further, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, that if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agreesParty, at the sole cost and expense of the Indemnifying Party, will provide reasonable cooperation to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(iclause (i), and except as specifically provided in this Section 10.4(a)(i)the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under this Article VI with respect to such Third Party Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Third Party Claim pursuant to this Section 10.4(a6.03(a), or if the Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Dispute Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to in a final conclusion reasonable manner and in good faith or will be settled at the discretion of the Indemnified PartyParty (subject to the consent of the Indemnifying Party in the case of any settlement that provides any relief other than the payment of monetary damages; which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereofthereof (subject to the consent of the Indemnifying Party in the case of any settlement that provides for any relief other than the payment of monetary damages; which consent will not be unreasonably withheld); provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(iiclause (ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying PartyParty in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(iiclause (ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses expenses, if any, of its separate counsel incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(iiclause (ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to .
(iii) If the Indemnifying Party of notifies the initiation of any discussions relating Indemnified Party that it does not dispute its liability to the settlement of a Indemnified Party with respect to the Third Party Claim under this Article VI or fails to allow notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to participate thereinthe Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the Indemnifying Party under this Article VI and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute.
(b) In the event any Indemnified Party should have a claim under this Article VI against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Loss in the amount specified in the Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under this Article VI and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute.
Appears in 1 contract
Samples: Master Investment Agreement (American Real Estate Investment Corp)
Method of Asserting Claims. All claims for indemnification under this Article 7 by any person Person entitled to indemnification hereunder (the "an “Indemnified Party"”) under this Article 10 7 will be asserted and resolved as follows:
(a) In the event any claim or demand, for which a party Party hereto (an "“Indemnifying Party"”) would be liable for the Damages to an Indemnified Party, is asserted against or sought to be collected from such an Indemnified Party by a person Person other than Seller, Purchaser or their affiliates Affiliates (a "“Third Party Claim"”), the Indemnified Party shall deliver give a notice of its claim (a "“Claim Notice"”) to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives written notice of such Third Party Claim; provided, however, that notice shall be provided given by the Indemnified Party to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by against the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period after the Indemnified Party receives written notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ’s ability to protect its interests, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim. The Indemnifying Party will notify the Indemnified Party within thirty (30) calendar days after receipt of the Claim Notice (the "“Notice Period"”) whether the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a7.4(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party. To the extent the Claim is solely for money damages, the The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing, the Indemnified Party may, at its sole cost and expense, file during the Notice Period any motion, answer or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii7.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's ’s action. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person Person asserting the Third Party Claim, or any cross-complaint against any person Person (other than the Indemnified Party or any of its affiliatesAffiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i7.4(a)(i), and except as specifically provided in this Section 10.4(a)(i7.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participation.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 10.4(a7.4(a), or if the Indemnifying Party gives such notice but fails to prosecute diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person Person asserting the Third Party Claim, or any cross-complaint against any person Person (other than the Indemnifying Party or any of its affiliatesAffiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii7.4(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's ’s defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation7.4(a)(ii). Subject to the above terms of this Section 10.4(a)(ii7.4(a)(ii), the Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii7.4(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to the Indemnifying Party of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate therein.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax ClaimParty, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) to the Indemnifying Party. (The term "“Indemnity Notice" ” shall mean written notification of a claim for indemnity under Article 10 7 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.47.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's Party’s rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been prejudiced thereby.
Appears in 1 contract
Samples: Limited Partner Interest Purchase Agreement (Horizon Health Corp /De/)
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 Section 9.1 will be asserted and resolved as follows:
(a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under Section 9.1 is asserted against or sought to be collected from such Indemnified Party by a person Person other than Seller, Purchaser a Seller or their affiliates any Affiliate of a Seller or of Buyer (a "“Third Party Claim"”), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim to the extent that the Indemnifying Party’s ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (Dispute Period whether the "Notice Period") Indemnifying Party disputes its liability to the Indemnified Party under Section 9.1 and whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a9.2(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party (but only with the consent of the Indemnified Party, which consent will not be unreasonably withheld, in the case of any settlement that provides for any relief other than the payment of monetary damages as to which the Indemnified Party will be indemnified in full). To the extent the Claim is solely for money damages, the The Indemnifying Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any compromise or settlement thereof. Notwithstanding the foregoing; provided, however, that the Indemnified Party may, at its the sole cost and expenseexpense of the Indemnified Party, at any time prior to the Indemnifying Party’s delivery of the notice referred to in the first sentence of this clause (i), file during the Notice Period any motion, answer or other pleadings or take any other action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party interests; and which is not prejudicialprovided further, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, that if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(iclause (i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participationseparate counsel, except as provided in the preceding sentence and except that the Indemnifying Party will pay the costs and expenses of such separate counsel if (x) in the Indemnified Party’s good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to be represented by separate counsel because a conflict or potential conflict exists between the Indemnifying Party and the Indemnified Party or (y) the named parties to such Third Party Claim include both the Indemnifying Party and the Indemnified Party and the Indemnified Party determines in good faith, based on advice of counsel, that defenses are available to it that are unavailable to the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under Section 9.1 with respect to such Third Party Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Third Party Claim pursuant to this Section 10.4(a9.2(a), or if the Indemnifying Party gives such notice but fails to prosecute defend vigorously and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion in good faith or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(iiclause (ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying PartyParty in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's ’s defense pursuant to this Section 10.4(a)(iiclause (ii) or of the Indemnifying Party's ’s participation therein at the Indemnified Party's ’s request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject .
(iii) If the Indemnifying Party notifies the Indemnified Party that it does not dispute its liability to the above terms Indemnified Party with respect to the Third Party Claim under Section 9.1 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss arising from such Third Party Claim will be conclusively deemed a liability of this the Indemnifying Party under Section 10.4(a)(ii)9.1 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party may participate in, but not control, any defense or settlement controlled by and the Indemnified Party pursuant will proceed in good faith to this Section 10.4(a)(ii)negotiate a resolution of such dispute, and if not resolved through negotiations within the Indemnifying Party will bear its own costs and expenses Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction in accordance with respect to such participation. The Indemnified Party shall give sufficient prior notice to the Indemnifying Party of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate thereinSection 11.15.
(b) In the event any Indemnified Party should have a claim under Section 9.1 against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's ’s rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Loss arising from the claim specified in such Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under Section 9.1 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction in accordance with Section 11.15.
(c) Any actions to be taken by the Seller Indemnifying Parties in connection with this Article IX shall require the consent of each of BRS Fund II, CD Fund IV and the Sellers’ Representative. If any question, difference or dispute arises among BRS Fund II, CD Fund IV and the Seller’s Representative, BRS Fund II, CD Fund IV and the Seller’s Representative shall, in good faith, attempt to reach an amicable settlement of such question, difference or dispute. If the dispute cannot be settled through good faith negotiations within 10 Business Days from the date of written notice by any party to the other parties of the existence of such dispute, the dispute shall be submitted to arbitration panel in the city and state of New York in accordance with the rules of the American Arbitration Association. Such arbitration shall be the exclusive means of dispute resolution among the parties.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 Section 9.1 will be asserted and resolved as follows:
: (a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under Section 9.1 is asserted against or sought to be collected from such Indemnified Party by a person Person other than Seller, Purchaser a Seller or their affiliates any Affiliate of a Seller or of Buyer (a "“Third Party Claim"”), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim to the extent that the Indemnifying Party’s ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (Dispute Period whether the "Notice Period") Indemnifying Party disputes its liability to the Indemnified Party under Section 9.1 and whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a9.2(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party (but only with the consent of the Indemnified Party, which consent will not be unreasonably withheld, in the case of any settlement that provides for any relief other than the payment of monetary damages as to which the Indemnified Party will be indemnified in full). To the extent the Claim is solely for money damages, the The Indemnifying Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any compromise or settlement thereof. Notwithstanding the foregoing; provided, however, that 62 the Indemnified Party may, at its the sole cost and expenseexpense of the Indemnified Party, at any time prior to the Indemnifying Party’s delivery of the notice referred to in the first sentence of this clause (i), file during the Notice Period any motion, answer or other pleadings or take any other action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party interests; and which is not prejudicialprovided further, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, that if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(iclause (i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participationseparate counsel, except as provided in the preceding sentence and except that the Indemnifying Party will pay the costs and expenses of such separate counsel if (x) in the Indemnified Party’s good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to be represented by separate counsel because a conflict or potential conflict exists between the Indemnifying Party and the Indemnified Party or (y) the named parties to such Third Party Claim include both the Indemnifying Party and the Indemnified Party and the Indemnified Party determines in good faith, based on advice of counsel, that defenses are available to it that are unavailable to the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under Section 9.1 with respect to such Third Party Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Third Party Claim pursuant to this Section 10.4(a9.2(a), or if the Indemnifying Party gives such notice but fails to prosecute defend vigorously and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion in good faith or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(iiclause (ii), if the Indemnifying 63 Party has notified the Indemnified Party with reasonable promptness within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying PartyParty in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's ’s defense pursuant to this Section 10.4(a)(iiclause (ii) or of the Indemnifying Party's ’s participation therein at the Indemnified Party's ’s request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject .
(iii) If the Indemnifying Party notifies the Indemnified Party that it does not dispute its liability to the above terms Indemnified Party with respect to the Third Party Claim under Section 9.1 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss arising from such Third Party Claim will be conclusively deemed a liability of this the Indemnifying Party under Section 10.4(a)(ii)9.1 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party may participate in, but not control, any defense or settlement controlled by and the Indemnified Party pursuant will proceed in good faith to this Section 10.4(a)(ii)negotiate a resolution of such dispute, and if not resolved through negotiations within the Indemnifying Party will bear its own costs and expenses Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction in accordance with respect to such participation. The Indemnified Party shall give sufficient prior notice to the Indemnifying Party of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate thereinSection 11.15.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been prejudiced thereby.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 Section 11.01 will be asserted and resolved as follows:
(a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under Section 11.01 is asserted against or sought to be collected from such Indemnified Party by a person Person other than Seller, Sellers or any Affiliate of Sellers or of Purchaser or their affiliates (a "“Third Party Claim"”), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (Dispute Period whether the "Notice Period") Indemnifying Party disputes its liability to the Indemnified Party under Section 11.01 and whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a11.03(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party (but only with the consent of the Indemnified Party, which consent will not be unreasonably withheld, in the case of any settlement that provides for any relief other than the payment of monetary damages as to which the Indemnified Party will be indemnified in full). To The Indemnifying Party will be deemed to have waived its right to dispute its liability to the extent Indemnified Party under Section 11.01 with respect to any Third Party Claim as to which it elects to control the Claim is solely for money damages, the defense. The Indemnifying Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any compromise or settlement thereof. Notwithstanding the foregoing; provided, however, that the Indemnified Party may, at its the sole cost and expenseexpense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this clause (i), file during the Notice Period any motion, answer or other pleadings or take any other action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party interests; and which is not prejudicialprovided further, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, that if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(iclause (i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participationseparate counsel, except as provided in the preceding sentence and except that the Indemnifying Party will pay the costs and expenses of such separate counsel if (x) in the Indemnified Party's good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to be represented by separate counsel because a conflict or potential conflict exists between the Indemnifying Party and the Indemnified Party which makes representation of both parties inappropriate under applicable standards of professional conduct or (y) the named parties to such Third Party Claim include both the Indemnifying Party and the Indemnified Party and the Indemnified Party determines in good faith, based on advice of counsel, that defenses are available to it that are unavailable to the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under Section 11.01 with respect to such Third Party Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Third Party Claim pursuant to this Section 10.4(a11.03(a), or if the Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying PartyParty (subject to any limitations or caps provided for in this Article XI), the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion in good faith or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any compromise settlement thereof (subject to any limitations or settlement thereofcaps provided for in this Article XI); provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agreeswill, at the sole cost and expense of the Indemnifying PartyParty (subject to any limitations or caps provided for in this Article XI), provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(iiclause (ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying PartyParty in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(iiclause (ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject .
(iii) If the Indemnifying Party notifies the Indemnified Party that it does not dispute its liability to the above terms Indemnified Party with respect to the Third Party Claim under Section 11.01 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss arising from such Third Party Claim (subject to any limitations or caps provided for in this Article XI) will be conclusively deemed a liability of the Indemnifying Party under Section 11.01 and the Indemnifying Party shall pay the amount of such Loss (subject to any limitations or caps provided for in this Section 10.4(a)(iiArticle XI) to the Indemnified Party on demand following the final determination thereof (and any remaining portion of such Loss beyond any applicable cap provided for in this Article XI shall be the responsibility of the Indemnified Party). If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party may participate in, but not control, any defense or settlement controlled by and the Indemnified Party pursuant will proceed in good faith to this Section 10.4(a)(ii)negotiate a resolution of such dispute, and if not resolved through negotiations within the Indemnifying Party will bear its own costs and expenses with respect to Resolution Period, such participation. The Indemnified Party dispute shall give sufficient prior notice to the Indemnifying Party be resolved by litigation in a court of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate thereincompetent jurisdiction.
(b) In the event any Indemnified Party should have a claim under Section 11.01 against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Loss arising from the claim specified in such Indemnity Notice (subject to any limitations or caps provided for in this Article XI) will be conclusively deemed a liability of the Indemnifying Party under Section 11.01 and the Indemnifying Party shall pay the amount of such Loss (subject to any limitations or caps provided for in this Article XI) to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 Section 6.3 will be asserted and resolved as follows:
(a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under Section 6.3 is asserted against or sought to be collected from such Indemnified Party by a person Person other than a Seller, Purchaser an Affiliate of a Seller, Buyer or their affiliates any Affiliate of Buyer (a "Third Party Claim"), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within Party, but in no event later than thirty (30) calendar days Business Days after the Indemnified 49 61 Party receives notice becoming aware of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (Indemnification Dispute Period whether the "Notice Period") Indemnifying Party disputes its liability to the Indemnified Party under Section 6.3 and whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Indemnification Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a6.4(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the Indemnifying Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party (but only with the consent of the Indemnified Party, which consent will not be unreasonably withheld, in the case of any settlement that provides for any relief other than the payment of monetary damages as to which the Indemnified Party will be indemnified in full). To The Indemnifying Party will be deemed to have waived its right to dispute its liability to the extent Indemnified Party under Section 6.3 with respect to any Third Party Claim as to which it elects to control the Claim is solely for money damages, the Indemnifying defense. The Indemnifying Party will have full control of such defense defense and proceedings, including (except as provided in the immediately preceding sentence) any compromise or settlement thereof. Notwithstanding the foregoing; provided, however, that the Indemnified Party may, at its the sole cost and expenseexpense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this clause (i), file during the Notice Period any motion, answer or other pleadings or take any other action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party interests; and which is not prejudicialprovided further, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, that if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant pursuant to this Section 10.4(a)(iclause (i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participationseparate counsel, except as provided in the preceding sentence and except that the Indemnifying Party will pay the costs and expenses of such separate counsel if (x) in the Indemnified Party's good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to be represented by separate counsel because a conflict or potential conflict exists between the Indemnifying Party and the Indemnified Party or (y) the named parties to such Third Party Claim include both the Indemnifying Party and the Indemnified Party and the Indemnified Party determines in good faith, based on advice of counsel, that defenses are available to it that are unavailable to the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under Section 6.3 with respect to such Third Party Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Indemnification Dispute Period that the Indemnifying Party desires to defend the Indemnified Third Party Claim pursuant to this Section 10.4(a6.4(a), or if the Indemnifying Indemnifying Party gives such notice but fails to prosecute prosecute vigorously and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion in good faith or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Indemnified Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any compromise or settlement settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(iiclause (ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness within the Indemnification Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying PartyParty in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(iiclause (ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigationlitigation. Subject to the above terms of this Section 10.4(a)(ii), the The Indemnifying Party may participate retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(iiclause (ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to .
(iii) If the Indemnifying Party of notifies the initiation of any discussions relating Indemnified Party that it does not dispute its liability to the settlement of a Indemnified Party with respect to the Third Party Claim under Section 6.3 or fails to allow notify the Indemnified Party within the Indemnification Dispute Period whether the Indemnifying Party disputes its liability to participate thereinthe Indemnified Party with respect to such Third Party Claim, the Loss arising from such Third Party Claim will be conclusively deemed a liability of the Indemnifying Party under Section 6.3 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Indemnification Resolution Period, such dispute shall be resolved by arbitration in accordance with paragraph (c) of this Section 6.4.
(b) In the event any Indemnified Party should have a claim under Section 6.3 against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Indemnification Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Loss arising from the claim specified in such Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under Section 6.3 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Indemnification Resolution Period, such dispute shall be resolved by arbitration in accordance with paragraph (c) of this Section 6.4. Any dispute submitted to arbitration pursuant to this Section 6.4 shall be finally and conclusively determined by the decision of a board of arbitration (hereinafter sometimes called the "Board of Arbitration") in accordance with the provisions of the NASD Code of Arbitration Procedures. The Board of Arbitration shall meet in New York, New York and shall reach and render a decision in writing with respect to the amount, if any, which the Indemnifying Party is required to pay to the Indemnified Party in respect of a claim filed by the Indemnified Party. The Board of Arbitration shall cause its written decision to be delivered to the Indemnified Party and the Indemnifying Party. Any decision made by the Board of Arbitration shall be final, binding and conclusive on the Indemnified Party and the Indemnifying Party and entitled to be enforced to the fullest extent permitted by law and entered in any court of competent jurisdiction.
Appears in 1 contract
Samples: Stock Purchase Agreement (First Albany Companies Inc)
Method of Asserting Claims. All claims for -------------------------- indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 IX will be asserted and resolved as follows:
(a) In the event any claim or demand, for which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, demand is asserted against or sought to be collected from such an Indemnified Party by a person other than the Seller, the Purchaser or their affiliates (a "Third Party Claim"), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after of receipt of a complaint, petition or institution notice of other formal legal action such Third Party Claim by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period fifteen (15) calendar days after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim if the Indemnifying Party's ability to defend has been materially prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party within thirty (30) calendar days after receipt of the Claim Notice (the "Notice Period") whether the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such Third Party ClaimClaim with counsel reasonably satisfactory to the Indemnified Party.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a)Section, then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party. To the extent the Claim is solely for money damages, the The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing, ; provided that the Indemnified Party may, at its -------- sole cost and expense, file during the Notice Period prior to the time the Indemnifying Party notifies the Indemnified Party that the Indemnifying Party desires to defend the Indemnified Party any motion, answer or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except Party (it being understood and agreed that, except as provided in Section 10.4(a)(iisubsection (a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If ); and provided further that if requested by the Indemnifying -------- ------- Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i9.4(a)(i), and except as specifically provided in this Section 10.4(a)(i)the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 10.4(a9.4(a), or if the Indemnifying Party gives such notice but fails to prosecute diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the a Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably vigorously prosecuted by the Indemnified Party to a final conclusion or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, provided that if requested by the -------- Indemnified 50 62 Party, the Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint compliant against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii)subsection, if the Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in in, favor of the Indemnifying PartyParty in the manner provided in subsection (b) of this Section, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigationThird Party Claim. Subject to the above terms of this Section 10.4(a)(ii), the The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii)Section, and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to the Indemnifying Party of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate therein.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax ClaimParty, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 IX hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.49.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been prejudiced thereby. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) calendar days following its receipt of a Claim Notice or an Indemnity Notice that the Indemnifying Party disputes its liability to the Indemnified Party hereunder, such claim specified by the Indemnified Party will be conclusively deemed a liability of the Indemnifying Party hereunder and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand, or on such later date (i) in the case of a Third Party Claim, as the Indemnified Party suffers Damages in respect of such Third Party Claim, (ii) in the case of an Indemnity Notice in which the amount of the claim is estimated, when the amount of such claim becomes finally determined or (iii) in the case of a Tax Claim, within fifteen (15) days following final determination of the item giving rise to the claim for indemnity. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnified Party agree to proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations, such dispute may be resolved by litigation in an appropriate court of competent jurisdiction.
Appears in 1 contract
Samples: Asset Purchase Agreement (Community Psychiatric Centers /Nv/)
Method of Asserting Claims. All claims for indemnification by any person entitled Indemnified Party under Sections 4.18, 7.2 and 7.4, subject to the provisions of Section 4.18 with respect to claims for indemnification hereunder (the "Indemnified Party") under this Article 10 related to Taxes, will be asserted and resolved as follows:
(a) : In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified PartyParty might seek indemnity under Sections 4.18, 7.2 and 7.4, is asserted against or sought to be collected from such Indemnified Party by a person Person other than Seller, Purchaser or their affiliates any Affiliate of Purchaser (a "Third Party Claim"), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will shall not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim to the extent that the Indemnifying Party demonstrates that its ability to defend such Third Party Claim has been prejudiced by such failure of the Indemnified Party. The Indemnifying Party will shall notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (Dispute Period whether the "Notice Period") Indemnifying Party disputes its liability to the Indemnified Party under Sections 4.18, 7.2 and 7.4, and whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a7.3(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will shall have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnifying Party with counsel reasonably satisfactory to a final conclusion or will be settled at the discretion of the Indemnifying Party. To the extent the Claim is solely for money damages, the Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing, the Indemnified Party may, at its sole cost and expense, file during the Notice Period any motion, answer or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with such Third Party Claim by all appropriate Proceedings, which Proceedings will be vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or may be settled at the discretion of the Indemnifying Party; provided, however, that the Indemnifying Party shall not be permitted to effect any settlement without the written consent of the Indemnified Party unless (i) the sole relief provided in connection with such settlement is monetary damages that are paid in full by the Indemnifying Party, (ii) such settlement involves no finding or admission of any violation or breach by any Indemnified Party of any right of any other Person or any Laws, Contracts, or Governmental Permits, and (iii) such settlement has no effect on any other claims that may be made against any Indemnified Party. The Indemnifying Party shall have full control of such defense and Proceedings, including any compromise or settlement thereof (except as provided in the preceding sentence) provided, however, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this clause (i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its counsel interests; and provided further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i), clause (i) and except as specifically provided in this Section 10.4(a)(i)the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under Sections 4.18, 7.2 or 7.4, as the case may be, with respect to such Third Party Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Third Party Claim pursuant to this Section 10.4(a7.3(a), or if the Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Dispute Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedingsProceedings, which proceedings Proceedings will be promptly and reasonably prosecuted by the Indemnified Party to in a final conclusion reasonable manner and in good faith or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Subject to the immediately preceding sentence, the Indemnified Party will have full control of such defense and proceedingsProceedings, including any compromise or settlement thereof; , provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(iiclause (ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying PartyParty in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(iiclause (ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(iiclause (ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to .
(iii) If the Indemnifying Party of notifies the initiation of any discussions relating Indemnified Party that it does not dispute its liability to the settlement of Indemnified Party with respect to a Third Party Claim under Sections 4.18, 7.2 or 7.4, as the case may be, or fails to allow notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to participate therein.
the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the Indemnifying Party under Sections 4.18, 7.2 or 7.4, as the case may be, and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and Indemnified Party will negotiate, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction. Notwithstanding the previous sentence, no payment need be made with respect to a Loss (bother than legal fees if the Indemnifying Party fails to defend) incurred with respect to a third party claim until the third party claim is resolved by settlement or a final judgment not subject to appeal. In the event any Indemnified Party should have a claim under Sections 4.18, 7.2 or 7.4, against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Loss in the amount specified in the Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under Sections 4.18, 7.2 and 7.4, and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
Appears in 1 contract
Samples: Stock Purchase Agreement (Big Flower Press Holdings Inc)
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 Section 10.01 will be asserted and resolved as follows:
(a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under Section 10.01 is asserted against or sought to be collected from such Indemnified Party by a person Person other than Seller, the Company, Purchaser or their affiliates any Affiliate of any Seller or Purchaser (a "“Third Party Claim"”), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim to the extent that the Indemnifying Party’s ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (Dispute Period whether the "Notice Period") Indemnifying Party disputes its liability to the Indemnified Party under Section 10.01 and whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) i. If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a10.02(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying PartyParty (but only with the consent of the Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damages or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full pursuant to Section 10.01). To the extent the Claim is solely for money damages, the The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing; provided, however, that the Indemnified Party may, at its the sole cost and expenseexpense of the Indemnified Party, at any time prior to the Indemnifying Party’s delivery of the notice referred to in the first sentence of this clause (i), file during the Notice Period any motion, answer or other pleadings or take any other action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party interests; and which is not prejudicialprovided further, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, that if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(iclause (i), and except as specifically provided in this Section 10.4(a)(i)the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under Section 10.01 with respect to such Third Party Claim.
(ii) . If the Indemnifying Party fails to notify the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Third Party Claim pursuant to this Section 10.4(a10.02(a), or if the Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Dispute Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to in a final conclusion reasonable manner and in good faith or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(iiclause (ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying PartyParty in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's ’s defense pursuant to this Section 10.4(a)(iiclause (ii) or of the Indemnifying Party's ’s participation therein at the Indemnified Party's ’s request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(iiclause (ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
iii. The Indemnified Party shall give sufficient prior notice to If the Indemnifying Party of notifies the initiation of any discussions relating Indemnified Party that it does not dispute its liability to the settlement of a Indemnified Party with respect to the Third Party Claim under Section 10.01 or fails to allow notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to participate thereinthe Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the Indemnifying Party under Section 10.01 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by arbitration in accordance with paragraph (c) of this Section 10.02.
(b) In the event any Indemnified Party should have a claim under Section 10.01 against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's ’s rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Loss in the amount specified in the Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under Section 10.01 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by arbitration in accordance with paragraph (c) of this Section 10.02.
(c) Any dispute submitted to arbitration pursuant to this Section 10.02 shall be finally and conclusively determined by the decision of a board of arbitration consisting of three (3) members (hereinafter sometimes called the “Board of Arbitration”) selected as hereinafter provided. Each of the Indemnified Party and the Indemnifying Party shall select one (1) member and the third member shall be selected by mutual agreement of the other members, or if the other members fail to reach agreement on a third member within twenty (20) days after their selection, such third member shall thereafter be selected by the ICC (as defined in Section 13.12) upon application made to it for such purpose by the Indemnified Party. The Board of Arbitration shall meet in Hong Kong or such other place as a majority of the members of the Board of Arbitration determines more appropriate, and shall reach and render a decision in writing (concurred in by a majority of the members of the Board of Arbitration) with respect to the amount, if any, which the Indemnifying Party is required to pay to the Indemnified Party in respect of a claim filed by the Indemnified Party. In connection with rendering its decisions, the Board of Arbitration shall adopt and follow such rules and procedures as a majority of the members of the Board of Arbitration deems necessary or appropriate. To the extent practical, decisions of the Board of Arbitration shall be rendered no more than thirty (30) calendar days following commencement of proceedings with respect thereto. The Board of Arbitration shall cause its written decision to be delivered to the Indemnified Party and the Indemnifying Party. Any decision made by the Board of Arbitration (either prior to or after the expiration of such thirty (30) calendar day period) shall be final, binding and conclusive on the Indemnified Party and the Indemnifying Party and entitled to be enforced to the fullest extent permitted by law and entered in any court of competent jurisdiction. Each party to any arbitration shall bear its own expense in relation thereto, including but not limited to such party’s attorneys’ fees, if any, and the expenses and fees of the member of the Board of Arbitration appointed by such party, provided, however, that the expenses and fees of the third member of the Board of Arbitration and any other expenses of the Board of Arbitration not capable of being attributed to any one member shall be borne in equal parts by the Indemnifying Party and the Indemnified Party.
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Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") under this Article 10 will be asserted and resolved as follows:
(a) In the event any claim or demand, for which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified 50 55 Party, is asserted against or sought to be collected from such Indemnified Party by a person other than Seller, Purchaser or their affiliates (a "Third Party Claim"), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt by the Indemnified Party of a complaint, petition or institution of other formal legal action by the Indemnified Partyaction. If the Indemnified Party fails to provide the Claim Notice within such applicable time period after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim to the extent that the Indemnifying Party demonstrates that it has been prejudiced thereby; but in no event will the Indemnified Party be entitled to indemnification from the Indemnifying Party if the Indemnified Party does not provide notice of a Third Party Claim within ninety (90) days after the Indemnified Party receives notice of such Third Party Claim. The Indemnifying Party will notify the Indemnified Party within thirty (30) calendar days after receipt of the Claim Notice (the "Notice Period") whether the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party. To the extent the Claim is solely for money damages, the The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing, the Indemnified Party may, at its sole cost and expense, file during the Notice Period any motion, answer or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the 51 56 Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participation. The Indemnifying Party shall give sufficient prior notice to the Indemnified Party of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnified Party to participate therein.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 10.4(a), or if the Indemnifying Party gives such notice but fails to prosecute diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to the Indemnifying Party of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate therein.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been prejudiced thereby.Indemnifying
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Method of Asserting Claims. (a) All claims for indemnification by any person indemnified party pursuant to this Article VIII shall be made in accordance with the provisions of this Section 8.2.
(b) If a third party asserts that an indemnified party is liable to such third party for a monetary or other obligation which may constitute or result in Damages for which the indemnified party may be entitled to indemnification hereunder (the "Indemnified Party") under pursuant to this Article 10 will VIII, and the indemnified party reasonably determines that it has a valid business reason to fulfill such obligation, then (i) the indemnified party shall be asserted entitled to satisfy such obligation, without prior notice to or consent from the indemnifying party, (ii) the indemnified party may make a claim for indemnification pursuant to this Article V, and resolved as follows:
(aiii) In the event indemnified party shall be reimbursed for any claim or demand, such Damages for which a party hereto (an "Indemnifying Party") would be liable for the Damages it is entitled to an Indemnified Party, is asserted against or sought indemnification pursuant to be collected from such Indemnified Party by a person other than Seller, Purchaser or their affiliates (a "Third Party Claim"), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interests, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim. The Indemnifying Party will notify the Indemnified Party within thirty (30) calendar days after receipt of the Claim Notice (the "Notice Period") whether the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such Third Party Claimthis Article VIII.
(ic) If the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party with respect The indemnified party shall give prompt written notification to the Third Party Claim indemnifying party of the commencement of any action, suit or proceeding relating to a third party claim for which indemnification pursuant to this Section 10.4(a)Article VIII may be sought. Within 20 days after delivery of such notification, thenthe indemnifying party may, subject upon written notice thereof to the immediately succeeding sentenceindemnified party, assume control of the defense of such action, suit or proceeding with counsel reasonably satisfactory to the indemnified party, provided each indemnifying party acknowledges in writing to the indemnified party that any damages, fines, costs or other liabilities that may be assessed against the indemnified party in connection with such action, suit or proceeding constitute Damages for which the indemnified party shall be entitled to indemnification pursuant to this Article VIII. If no indemnifying party so assumes control of such defense, the Indemnifying Party will have the right to defend, indemnified party shall control such defense. The party not controlling such defense may participate therein at its sole cost and own expense, such Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by ; provided that if the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party. To the extent the Claim is solely for money damages, the Indemnifying Party will have full indemnifying party assumes control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing, the Indemnified Party may, at its sole cost and expense, file during the Notice Period any motion, answer or other pleadings indemnified party reasonably concludes that the Indemnified Party may deem necessary or appropriate to protect its indemnifying party and the indemnified party have conflicting interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses different defenses available with respect to such participation.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 10.4(a)action, suit or if the Indemnifying Party gives such notice but fails to prosecute diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Partyproceeding, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party will not be required to bear the costs fees and expenses of counsel to the Indemnified Party's indemnified party shall be considered "Damages" for purposes of this Agreement. The party controlling such defense pursuant to this Section 10.4(a)(ii) or shall keep the other party advised of the Indemnifying Party's participation therein at the Indemnified Party's requeststatus of such action, suit or proceeding and the Indemnified Party will reimburse the Indemnifying Party defense thereof and shall consider in full for all reasonable costs and expenses incurred good faith recommendations made by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii), and the Indemnifying Party will bear its own costs and expenses other party with respect to such participationthereto. The Indemnified Party indemnified party shall give sufficient prior notice not agree to the Indemnifying Party of the initiation of any discussions relating to the settlement of a Third Party Claim such action, suit or proceeding without the prior written consent of each indemnifying party, which shall not be unreasonably withheld. No indemnifying party shall agree to allow the Indemnifying Party to participate therein.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount settlement of such claim.) The failure by any Indemnified Party to give action, suit or proceeding without the Indemnity Notice prior written consent of each indemnified party, which shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been prejudiced therebybe unreasonably withheld.
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Method of Asserting Claims. All claims for indemnification by -------------------------- any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 Section 8.01 will be asserted and resolved as ------------ follows:
(a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under Section 8.01 is asserted against or ------------ sought to be collected from such Indemnified Party by a person Person other than Seller, a Purchaser or their affiliates Indemnified Party (a "Third Party Claim"), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim, but only to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (Dispute Period whether the "Notice Period") Indemnifying Party disputes its liability to the Indemnified Party under Section ------- 8.02 and whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, ---- to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a8.02(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, --------------- with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be reasonably, vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party. To Party (but only with the extent the Claim is solely for money damages, the Indemnifying Party will have full control consent of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing, the Indemnified Party may, at its sole cost and expense, file during the Notice Period any motion, answer or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment case of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, if an Indemnified Party takes any such action settlement that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting provides for any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (relief other than the Indemnified Party payment of monetary damages or any that provides for the payment of its affiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant monetary damages as to this Section 10.4(a)(i), and except as specifically provided in this Section 10.4(a)(i), which the Indemnified Party will bear its own costs and expenses with respect to such participation.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 10.4(a), or if the Indemnifying Party gives such notice but fails to prosecute diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party indemnified in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms reason of this Section 10.4(a)(ii), the Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to the Indemnifying Party of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate therein.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been prejudiced thereby.--------
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 will VI shall be asserted and resolved as follows:
: (a) In the event Third Party Claims. If any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under this Article VI is asserted against or sought to be collected from such Indemnified Party by a person other than Seller, Purchaser or their affiliates Person (a "“Third Party Claim"”), the Indemnified Party shall deliver a give written notice of its claim (a "the “Third Party Claim Notice"”) and the details thereof including copies of all relevant pleadings, documents and information to the Indemnifying Party within a period of thirty (30) calendar days after following the assertion of the Third Party Claim against the Indemnified 49 61 Party receives notice of such (the “Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified PartyClaim Notice Period”). If the Indemnified Party fails to provide the Third Party Claim Notice within such applicable time period after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsNotice Period, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim. The Claim to the extent that the Indemnifying Party will notify Party’s ability to defend has been prejudiced by such failure of the Indemnified Party within thirty Party. Within twenty (3020) calendar days after its receipt of the Third Party Claim Notice (the "Notice Period") whether the Indemnifying Party desires, at the sole cost and expense of by the Indemnifying Party, the Indemnifying Party shall, in writing, either acknowledge or deny its obligations to indemnify and defend under this Article VI. If the Indemnifying Party acknowledges its obligations to indemnify and defend the Indemnified Party against such the Third Party Claim.
(i) If , then the Indemnifying Party notifies shall defend, with counsel reasonably satisfactory to the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a), then, subject to the immediately succeeding sentence, the Indemnifying Party will have the right to defend, at its sole cost and expenseParty, such Third Party Claim by all appropriate proceedings, which proceedings will be diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled settled, at the discretion of the Indemnifying Party. To the extent the Claim is solely for money damages; provided, however, that the Indemnifying Party shall not enter into any settlement that does not fully and finally release the Indemnified Party from all claims, unless consented to by the Indemnified Party in writing. The Indemnified Party will have full control cooperate in such defense, and all costs or expenses incurred by it at the request of such defense and proceedings, including any compromise or settlement thereofthe Indemnifying Party shall be paid by the Indemnifying Party. Notwithstanding the foregoing, the The Indemnified Party may, at its sole the Indemnifying Party’s cost and expense, at any time prevent default or protect, file during the Notice Period any motion, answer pleadings or take any other pleadings action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those due to the failure of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, if an Indemnified Party takes any diligently defend such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party Party, at its sole expense, may participate in, but not control, any defense or settlement of any Third Party Claim controlled conducted by the Indemnifying Party pursuant to this Section 10.4(a)(i6.5(a), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participation.
(ii) . If the Indemnifying Party fails denies its obligations to notify the Indemnified Party within the Notice Period that the Indemnifying Party desires to indemnify and defend the Indemnified Party pursuant to this Section 10.4(a), or if the Indemnifying Party gives such notice but fails to prosecute diligently or settle from the Third Party Claim, or if the Indemnifying Party acknowledges its obligations but refuses to defend or fails to give any notice whatsoever within defend diligently or settle the Notice PeriodThird Party Claim, then the Indemnified Party will have may in its sole discretion, settle or defend the right to defendThird Party Claim. The Indemnifying Party will, at the its sole cost and expense of the Indemnifying Partyexpense, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion or will be settled at the discretion of the Indemnified Partycooperate in such defense. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, If it is thereafter determined that if requested by the Indemnified 50 62 Party, the Indemnifying Party agrees, at the sole cost was obligated to indemnify and expense of the Indemnifying Party, to cooperate with defend the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related refused or failed to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, do so or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability failed to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to the Indemnifying Party of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate therein.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been prejudiced thereby.do so
Appears in 1 contract
Samples: Asset Purchase Agreement
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 Section 1.06, 11.01 or 11.02 will be asserted and resolved as follows:
(a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under this Article XI is asserted against or sought to be collected from such Indemnified Party by a person Person other than SellerShareholders, Purchaser Xxxxx, Bancorp or their affiliates any Affiliate of Shareholders or Bancorp (a "Third Party Claim"), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after and, if applicable, the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified PartyEscrow Agent. If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (Dispute Period whether the "Notice Period") Indemnifying Party disputes its liability to the Indemnified Party under this Article XI and whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(ib) If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a)Claim, then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying PartyParty (but only with the consent of the Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damages. To the extent the Claim is solely for money damages, the The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing; provided, however, that the Indemnified Party may, at its the sole cost and expenseexpense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this subsection, file during the Notice Period any motion, answer or other pleadings or take any other action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party interests; and which is not prejudicialprovided further, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, that if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i)subsection, and except as specifically provided in this Section 10.4(a)(i)the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under this Article XI with respect to such Third Party Claim.
(iic) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Third Party Claim pursuant to this Section 10.4(a11.03(a), or if the Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Dispute Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to in a final conclusion reasonable manner and in good faith or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii)subsection, if the Indemnifying Party has notified the Indemnified Party with reasonable promptness within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying PartyParty in the manner provided in subsection (d) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii) subsection or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii)subsection, and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to .
(d) If the Indemnifying Party of notifies the initiation of any discussions relating Indemnified Party that it does not dispute its liability to the settlement of a Indemnified Party with respect to the Third Party Claim under Article XI or fails to allow notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to participate thereinthe Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the Indemnifying Party under this Article XI and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(be) In the event any Indemnified Party should have a claim under this Article XI against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Loss in the amount specified in the Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under this Article XI and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
Appears in 1 contract
Samples: Merger Agreement (Bancorp, Inc.)
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 Section 9.1 will be asserted and resolved as follows:
(a) In the event order for an Indemnified Party to be entitled to any indemnification provided for under Section 9.1 in respect of, arising out of or involving a claim or demand, for which demand made by any Person not a party hereto (an "Indemnifying Party") would be liable for to this Agreement against the Damages to an Indemnified Party, is asserted against or sought to be collected from such Indemnified Party by a person other than Seller, Purchaser or their affiliates (a "Third Party ClaimTHIRD PARTY CLAIM"), the Indemnified Party shall must deliver a notice of its claim (a "Claim Notice") Notice to the Indemnifying Party within thirty ten (3010) calendar days Business Days after the receipt by such Indemnified 49 61 Party receives of written notice of such the Third Party Claim; providedPROVIDED, howeverHOWEVER, that notice failure to give such Claim Notice shall be not affect the indemnification provided hereunder except to the extent the Indemnifying Party within fifteen (15) calendar days after receipt of shall have been actually prejudiced as a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period after the Indemnified Party receives notice result of such failure.
(b) If a Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interests, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim. The Indemnifying Party will notify the Indemnified Party within thirty (30) calendar days after receipt of the Claim Notice (the "Notice Period") whether the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party is made against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a), then, subject to the immediately succeeding sentence, the Indemnifying Party will have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party. To the extent the Claim is solely for money damages, the Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing, the Indemnified Party may, at its sole cost and expense, file during the Notice Period any motion, answer or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will shall be relieved of its obligations hereunder entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested counsel selected by the Indemnifying Party, which counsel must be reasonably satisfactory to the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with . Should the Indemnifying Party and its counsel in contesting any Third Party Claim that so elect to assume the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the defense of a Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participation.shall not be
(iii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 10.4(a), or if the Indemnifying Party gives such notice but fails to prosecute diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost constitutes a complete and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly unconditional discharge and reasonably prosecuted by the Indemnified Party to a final conclusion or will be settled at the discretion release of the Indemnified Party. The Indemnified Party will have , and (ii) provides for no relief other than the payment of monetary damages and such monetary damages are paid in full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to the Indemnifying Party of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate therein.
(bc) In the event any Indemnified Party should shall have a claim under Section 9.1 against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been materially prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Loss in the amount specified in the Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under Section 9.1 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
Appears in 1 contract
Samples: Unit Purchase Agreement (Universal Broadband Networks Inc)
Method of Asserting Claims. All claims for indemnification under this Article 10 by any person entitled to indemnification hereunder (the "an “Indemnified Party"”) under this Article 10 will be asserted and resolved as follows:
(a) In the event any claim or demand, for which a party Party hereto (an "“Indemnifying Party"”) would be liable for the Damages to an Indemnified Party, is asserted against or sought to be collected from such an Indemnified Party by a person other than Seller, Purchaser or their affiliates Affiliates (a "“Third Party Claim"”), the Indemnified Party shall deliver give a notice of its claim (a "“Claim Notice"”) to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives written notice of such Third Party Claim; provided, however, that notice shall be provided given by the Indemnified Party to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by against the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period after the Indemnified Party receives written notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ’s ability to protect its interests, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim. The Indemnifying Party will notify the Indemnified Party within thirty (30) calendar days after receipt of the Claim Notice (the "“Notice Period"”) whether the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party. To the extent the Claim is solely for money damages, the The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing, the Indemnified Party may, at its sole cost and expense, file during the Notice Period any motion, answer or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's ’s action. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliatesAffiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participation.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 10.4(a), or if the Indemnifying Party gives such notice but fails to prosecute diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliatesAffiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's ’s defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation). Subject to the above terms of this Section 10.4(a)(ii), the Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to the Indemnifying Party of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate therein.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax ClaimParty, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) to the Indemnifying Party. (The term "“Indemnity Notice" ” shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's ’s rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been prejudiced thereby.
Appears in 1 contract
Samples: Asset Purchase Agreement (Horizon Health Corp /De/)
Method of Asserting Claims. All Subject to Section 8.1, all claims for indemnification under this Article VIII by any person entitled to party claiming indemnification hereunder (the an "Indemnified Party") under this Article 10 will be asserted and resolved as follows:.
(a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under this Article VIII is asserted against or sought to be collected from such Indemnified Party by a person Person other than Seller, Purchaser either the parties hereto or their affiliates any Affiliate of the parties hereto (a "Third Party Claim"), the Indemnified Party shall deliver a notice written notification of its claim such Third Party Claim specifying the nature of and basis for such Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of such Third Party Claim (a "Claim Notice") with reasonable promptness to the party against whom a claim for indemnification is being asserted hereunder (an "Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party"). If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim except to the extent that the Indemnifying Party's ability to defend is prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party within thirty fifteen (3015) calendar days after following receipt of the Claim Notice (the "Notice Dispute Period") whether the Indemnifying Party accepts or disputes its liability to the Indemnified Party under this Article VI and whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a)8.4, then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnifying Party to a final conclusion or will be settled or, at the discretion of the Indemnifying Party, to settle such Third Party Claim (but only with the consent of the Indemnified Party, which shall not be unreasonably withheld, in the case of any settlement that provides for any relief other than the payment of monetary damages or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full pursuant to this Article VIII). To Subject to the extent the Claim is solely for money damagesforegoing, the Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing; provided, however, that the Indemnified Party may, at its sole the cost and expenseexpense of the Indemnifying Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this Section 8.4(a)(i), file during the Notice Period any motion, answer or other pleadings or take any other action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party interests; and which is not prejudicialprovided, in the reasonable judgment of the Indemnifying Partyfurther, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, that if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide full cooperation to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i)8.4 and, and except as specifically provided in this Section 10.4(a)(i)the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under this Article VIII with respect to such Third Party Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Third Party pursuant to this Section 10.4(a)Claim, or if the Indemnifying Party gives such notice but any time thereafter fails diligently to prosecute diligently or defend or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Dispute Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion in good faith or will be settled at the discretion of the Indemnified Party (but only with the consent of the Indemnifying Party, which shall not be unreasonably withheld or delayed, in the case of any settlement that provides for any relief other than the payment of monetary damages). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii)8.4, if the Indemnifying Party has notified the Indemnified Party with reasonable promptness within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying PartyParty in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii) 8.4 or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii)8.4, and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice .
(iii) Subject to Section 8.2(b), if the Indemnifying Party of notifies the initiation of any discussions relating Indemnified Party that it accepts its indemnification liability to the settlement of a Indemnified Party with respect to the Third Party Claim under this Article VIII or fails to allow notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to participate thereinthe Indemnified Party with respect to such Third Party Claim, the Losses identified in the Claim Notice, as finally determined, will be conclusively deemed a liability of the Indemnifying Party under this Article VIII and the Indemnifying Party shall pay the amount of such Losses to the Indemnified Party on demand plus interest at the Agreed Rate from the date of the receipt of the applicable Claim Notice to the date of such payment. If the Indemnifying Party timely disputes its liability with respect to such Third Party Claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the thirty (30) calendar days following receipt by an Indemnified Party of a Dispute Notice (the "Resolution Period"), such dispute shall be resolved by litigation in a court of competent jurisdiction.
(b) In the event any Indemnified Party should have a claim under this Article VIII against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) to the Indemnifying Party. (The term "Indemnity Notice" shall mean a written notification of a claim for indemnity under this Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, VIII specifying the nature of and specific basis for such claim and claim, together with the amount or amount, or, if not then reasonably ascertainable, the estimated amount amount, determined in good faith, of such claim.claim (an "Indemnity Notice") with reasonable promptness to the Indemnifying Party. The failure or delay by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that such failure or delay prejudices an Indemnifying Party. If the Indemnifying Party demonstrates notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Losses indemnified in the Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under this Article VIII and the Indemnifying Party shall pay the amount of such Losses to the Indemnified Party on demand. If the Indemnifying Party has been prejudiced therebytimely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 will XI shall be asserted and resolved as follows:
(a) In the event THIRD PARTY CLAIMS. If any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under this Article XI is asserted against or sought to be collected from such Indemnified Party by a person other than Seller, Purchaser or their affiliates Person (a "Third Party ClaimTHIRD PARTY CLAIM"), the Indemnified Party shall deliver a give written notice of its claim (a the "Claim NoticeTHIRD PARTY CLAIM NOTICE") and the details thereof including an estimate of the claimed Losses, copies of all relevant pleadings, documents and information to the Indemnifying Party within a period of thirty (30) calendar days after following the assertion of the Third Party Claim against the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to (the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party"THIRD PARTY CLAIM NOTICE PERIOD"). If the Indemnified Party fails to provide the Third Party Claim Notice within such applicable time period after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsNotice Period, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim to the extent that the Indemnifying Party's ability to defend has been prejudiced by such failure of the Indemnified Party. The Indemnifying Within twenty (20) days after its receipt of the Third Party will notify Claim Notice by the Indemnified Party within thirty (30) calendar days after receipt of the Claim Notice (the "Notice PeriodTHIRD PARTY CLAIM RESPONSE PERIOD") whether ), the Indemnifying Party desiresshall, at the sole cost in writing, either acknowledge or deny its obligations to indemnify and expense of defend under this Article XI. If the Indemnifying Party, Party acknowledges its obligations to indemnify and defend the Indemnified Party against such the Third Party Claim.
(i) If , then the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party desires to shall defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a), then, subject to the immediately succeeding sentence, the Indemnifying Party will have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings will be diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled settled, at the discretion of the Indemnifying Party. To the extent the Claim is solely for money damages; provided, however, that the Indemnifying Party shall not enter into any settlement that does not fully and finally release the Indemnified Party from all claims, unless consented to by the Indemnified Party. The Indemnified Party will have full cooperate fully in such defense, including, without limitation, by making available to the Indemnifying Party all books, records and documents within the Indemnified Party's control or that it can reasonably obtain relating to the Third Party Claim, and all costs or expenses incurred by it at the request of such defense and proceedings, including any compromise or settlement thereofthe Indemnifying Party shall be paid by the Indemnifying Party. Notwithstanding the foregoing, the The Indemnified Party may, at its sole the Indemnifying Party's cost and expense, at any time to prevent default or protect its interests file during the Notice Period any motion, answer pleadings or take any other pleadings action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, due to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved failure of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates)diligently defend such action. The Indemnified Party Party, at its expense, may participate in, but not control, any defense or settlement of any Third Party Claim controlled conducted by the Indemnifying Party pursuant to this Section 10.4(a)(i11.4(a), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participation.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 10.4(a), or if the Indemnifying Party gives such notice but fails to prosecute diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to the Indemnifying Party of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate therein.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been prejudiced thereby.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 Section 9.1 hereof will be asserted and resolved as follows:
(a) In the event any claim or demand, demand for which a party hereto (an "Indemnifying Party") would Party may be liable for the Damages to an Indemnified Party, Party under Section 9.1 hereof is asserted against or sought to be collected from such Indemnified Party by a person Person other than the Company, GSSW-REO, any Property Partnership, any Purchaser-Related Persons or any Seller, Purchaser or their affiliates -Related Persons (a "Third Party Claim"), the Indemnified Party shall will deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party ClaimParty; provided, however, that notice shall except as set forth in Section 9.2(d) hereof, no Claim Notice will be provided required with respect to any action, suit, investigation, or proceeding that is in existence on the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified PartyClosing Date. If the Indemnified Party fails to provide the Indemnifying Party with the Claim Notice within such applicable time period after required by the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs preceding sentence at least 14 calendar days before the date on which the Indemnifying Party's ability to protect its interestsdefend against the Third Party Claim is irrevocably prejudiced by the Indemnified Party's failure to provide such Claim Notice, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such portion of the Third Party ClaimClaim as to which the Indemnifying Party's ability to defend has been irrevocably prejudiced by such failure of the Indemnified Party; however, the foregoing limitation shall not be applicable as to Third Party Claims of which the Indemnified Party did not have notice prior to such 14th day. The Indemnifying Party will notify the Indemnified Party with reasonable promptness after the Indemnifying Party's receipt of a Claim Notice, but in all events within thirty (30) 7 calendar days after receipt of the Claim Notice thereof (the "Notice Period") ), of whether the Indemnifying Party disputes the liability of the Indemnifying Party to the Indemnified Party hereunder with respect to such Third Party Claim and whether the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such Third Party Claim. If the Indemnifying Party disputes the liability of the Indemnifying Party to the Indemnified Party hereunder with respect to such Third Party Claim, the Indemnifying Party and Indemnified Party will negotiate in good faith for a period of thirty days failing resolution of which the matter shall be submitted for arbitration in accordance with the provisions of Section 9.6 below. A failure of the Indemnifying Party to respond to a Claim Notice within the period required shall be deemed to constitute a dispute of the claim described in such Claim Notice by the Indemnifying Party.
(ib) If the Indemnifying Party notifies the Indemnified Party within the Notice Period or at any time thereafter that the Indemnifying Party (without any reservation of rights) does not dispute its liability to the Indemnified Party and that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(aARTICLE IX (the "Non-Dispute Notice"), then, or in the event any matter submitted for arbitration pursuant to Section 9.6 results in a determination that the Third Party Claim is subject to indemnification pursuant to the immediately succeeding sentenceterms hereof (the "Arbitration Determination"), then the Indemnifying Party will have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings will be diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party (with the consent of the Indemnified Party, which consent will not be withheld or delayed unreasonably). To Any legal counsel engaged by the extent Indemnifying Party to defend a Third Party Claim shall be approved by the Claim is solely for money damagesIndemnified Party, such approval not to be unreasonably withheld or delayed. From the date of the Non-Dispute Notice or Arbitration Determination, as applicable, the Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing; provided, however, that the Indemnified Party may, at any time prior to its sole cost and expensereceipt of the Non-Dispute Notice or the Arbitration Determination, as applicable, file during the Notice Period any motion, answer answer, or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, irrevocably prejudicial to the Indemnifying Party. Except Party (it being understood and agreed that, except as provided in Section 10.4(a)(ii9.2(c) hereof, if an Indemnified Party takes any such action that is irrevocably prejudicial and conclusively causes a final adjudication that is materially adverse to the Indemnifying PartyParty during the Notice Period or thereafter if the Indemnifying Party has given notice to the Indemnified Party of its desire to defend the Third Party Claim, or prior to the Arbitration Determination, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim irrevocably prejudiced by the Indemnified Party's action. If ); and provided further, that if requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party (except that the Indemnifying Party shall not be responsible for any attorneys fees of the Indemnified Party unless the retention of such attorneys is required by the Indemnifying Party), to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person Person asserting the Third Party Claim, or any cross-complaint against any person Person (other than the Indemnified Party or any of its affiliatesAffiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i9.2(b), but all such settlements shall be subject to the Indemnified Party's approval, and except as specifically provided in this Section 10.4(a)(i)the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation.
(iic) If the Indemnifying Party fails to notify provide the Non-Dispute Notice to the Indemnified Party within (without any reservation of rights) with respect to the Notice Period that the Indemnifying Third Party desires to defend the Indemnified Party Claim pursuant to this Section 10.4(a), or if the Indemnifying Party gives such notice but fails to prosecute diligently or settle the Third Party ClaimARTICLE IX, or if the Indemnifying Party fails to give any notice whatsoever within diligently and promptly prosecute or settle the Notice PeriodThird Party Claim either following the Arbitration Determination or after the Indemnifying Party gives the Non-Dispute Notice, then the Indemnified Party will have the right (but not the obligation) to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings and defense, if commenced, will be promptly and reasonably vigorously prosecuted by the Indemnified Party to a final conclusion or will be settled at the discretion of the Indemnified party (with the consent of the Indemnifying Party, which consent will not be withheld or delayed unreasonably). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person Person asserting the Third Party Claim, or any cross-complaint against any person Person (other than the Indemnifying Party or any of its affiliatesAffiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii9.2(c), if the Indemnifying Party has timely notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party, pursuant to the arbitration process provided in Section 9.6 below or otherwise, if applicable, by final, nonappealable order of a court of competent jurisdiction, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii9.2(c) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigationproceedings. Subject to the above terms of this Section 10.4(a)(ii), the The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii9.2(c), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to the Indemnifying Party of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate therein.
(bd) In the event any Indemnified Party should shall have a claim against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax ClaimParty, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) to will notify the Indemnifying Party with reasonable promptness of such claim by the Indemnified Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any claim (the "Indemnity Notice"). If the Indemnifying Party disputes such claim (which dispute shall be communicated to the Indemnified Party to give in writing within 15 days of receipt of an Indemnity Notice), the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it and the Indemnified Party agree to proceed in good faith to attempt to negotiate a resolution of such dispute for a period of thirty days, and if not resolved through negotiations, either party may submit the matter to arbitration to determine whether the Indemnifying Party has been prejudiced therebysuch liability in accordance with the provisions of Section 9.6 below.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 Section 10.1 will be asserted and resolved as follows:
(a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under SECTION 10.1 is asserted against or sought to be collected from such Indemnified Party by a person Person other than Sellerthe Company, the Purchaser, Parent or any Affiliate of the Company, the Purchaser or their affiliates Parent (a "Third Party ClaimTHIRD PARTY CLAIM"), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (Dispute Period whether the "Notice Period") Indemnifying Party disputes its liability to the Indemnified Party under SECTION 10.1 and whether the Indemnifying Party desires, other than in connection with a Third Party Claim involving Taxes, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(aSECTION 10.2(a)(i), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, other than in connection with a Third Party Claim involving Taxes, with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying PartyParty (but only with the consent of the Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damages or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full pursuant to SECTION 10.1). To the extent the Claim is solely for money damages, the The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing; PROVIDED, HOWEVER, that the Indemnified Party may, at its the sole cost and expenseexpense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this SECTION 10.2(a)(i), file during the Notice Period any motion, answer or other pleadings or take any other action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party interests; and which is not prejudicialPROVIDED FURTHER, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, that if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(iSECTION 10.2(a)(i), and except as specifically provided in this Section 10.4(a)(i)the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under SECTION 10.1 with respect to such Third Party Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Third Party Claim pursuant to this Section 10.4(aSECTION 10.2(a)(i), or if the Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice PeriodDispute Period or if the Third Party Claim involves Taxes, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to in a final conclusion reasonable manner and in good faith or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not 33 be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; providedPROVIDED, howeverHOWEVER, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(iiSECTION 10.2(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying PartyParty in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(iiSECTION 10.2(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs Costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(iiSECTION 10.2(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to .
(iii) If the Indemnifying Party of notifies the initiation of any discussions relating Indemnified Party that it does not dispute its liability to the settlement of a Indemnified Party with respect to the Third Party Claim under SECTION 10.1 or fails to allow notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to participate thereinthe Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the Indemnifying Party under SECTION 10.1 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(b) In the event any Indemnified Party should have a claim under SECTION 10.1 against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights rights, hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Loss in the amount specified in the Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under SECTION 10.1 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a 34 resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(c) An Indemnified Party shall be entitled to set off against payments such Indemnified Party owes to an Indemnifying Party (including payments owed under this Agreement), the sum of all obligations that such Indemnified Party is entitled to from the indemnifying Party pursuant to this Article X ARTICLE XI
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 Section 8.01 will be asserted and resolved as follows:
(a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under Section 8.01 is asserted against or sought to be collected from such Indemnified Party by a person Person other than Seller, a Purchaser or their affiliates Indemnified Party (a "“Third Party Claim"”), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim, but only to the extent that the Indemnifying Party’s ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (Dispute Period whether the "Notice Period") Indemnifying Party disputes its liability to the Indemnified Party under Section 8.02 and whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a8.02(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be reasonably and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying PartyParty (but only with the consent of the Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damages or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full by reason of this Section 8.02). To the extent the Claim is solely for money damages, the The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing; provided, however, that the Indemnified Party may, at its the sole cost and expenseexpense of the Indemnified Party, at any time subsequent to the delivery of a Claim Notice to the Indemnified Party and prior to the Indemnifying Party’s delivery of the notice referred to in the first sentence of this Section 8.02(a)(i), file during the Notice Period any motion, answer or other pleadings or take any other action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party interests; and which is not prejudicialprovided further, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, that if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest; and provided, orfurther, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than that the Indemnified Party or any may choose separate counsel at the sole cost and expense of its affiliates)the Indemnifying Party in the event that a conflict of interest arises between the Indemnified Party and the Indemnifying Party. The Indemnified Party may participate in, but not control, any defense or settlement (subject to the provisions in the first sentence of this Section 8.02(a)(i)) of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i8.02(a)(i), and except as specifically provided in this Section 10.4(a)(i)the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under Section 8.02 with respect to such Third Party Claim.
(ii) If the Indemnifying Party fails to notify assume the Indemnified defense of the Third Party Claim within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 10.4(a), or if the Indemnifying Party gives such notice but fails to prosecute reasonably and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to in a final conclusion reasonable manner and in good faith or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement (subject to the provisions in the first sentence of this Section 8.02(a)(ii)) thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii8.02(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying PartyParty in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's ’s defense pursuant to this Section 10.4(a)(ii8.02(a)(ii) or of the Indemnifying Party's ’s participation therein at the Indemnified Party's ’s request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the The Indemnifying Party may participate in, but not control, any defense or settlement (subject to the provisions oin the first sentence of this Section 8.02(a)(ii)) controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii8.02(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The .
(iii) If the Indemnifying Party notifies the Indemnified Party shall give sufficient prior that it does not dispute its liability to the Indemnified Party with respect to the Third Party Claim under Section 8.02, or if the Indemnifying Party fails to deliver a notice to the Indemnifying Indemnified Party within the Dispute Period, then the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party under Section 8.02 and the Indemnifying Party shall pay the amount of such Loss to participate thereinthe Indemnified Party on demand. If the Indemnifying Party has disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(b) In the event any Indemnified Party should have has a claim under Section 8.02 against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's ’s rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice, or if the Indemnifying Party fails to deliver a notice to the Indemnified Party within the Dispute Period, then the Loss in the amount specified in the Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under Section 8.02 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand.
(c) Purchaser shall have the right to set off any amounts Seller owes it under this Section 8.02 against the Holdback.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification under this Article 7 by any person Person entitled to indemnification hereunder (the "an “Indemnified Party"”) under this Article 10 8 will be asserted and resolved as follows:
(a) In the event any claim or demand, for which a party Party hereto (an "“Indemnifying Party"”) would be liable for the Damages to an Indemnified Party, is asserted against or sought to be collected from such an Indemnified Party by a person Person other than Seller, Purchaser or their affiliates Affiliates (a "“Third Party Claim"”), the Indemnified Party shall deliver give a notice of its claim (a "“Claim Notice"”) to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives written notice of such Third Party Claim; provided, however, that notice shall be provided given by the Indemnified Party to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by against the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period after the Indemnified Party receives written notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ’s ability to protect its interests, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim. The Indemnifying Party will notify the Indemnified Party within thirty (30) calendar days after receipt of the Claim Notice (the "“Notice Period"”) whether the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a8.4(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party. To the extent the Claim is solely for money damages, the The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing, the Indemnified Party may, at its sole cost and expense, file during the Notice Period any motion, answer or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii8.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's ’s action. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person Person asserting the Third Party Claim, or any cross-complaint against any person Person (other than the Indemnified Party or any of its affiliatesAffiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i8.4(a)(i), and except as specifically provided in this Section 10.4(a)(i8.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participation.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 10.4(a8.4(a), or if the Indemnifying Party gives such notice but fails to prosecute diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person Person asserting the Third Party Claim, or any cross-complaint against any person Person (other than the Indemnifying Party or any of its affiliatesAffiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii8.4(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's ’s defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation8.4(a)(ii). Subject to the above terms of this Section 10.4(a)(ii8.4(a)(ii), the Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii8.4(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to the Indemnifying Party of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate therein.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax ClaimParty, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) to the Indemnifying Party. (The term "“Indemnity Notice" ” shall mean written notification of a claim for indemnity under Article 10 8 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.48.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's Party’s rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been prejudiced thereby.
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Samples: Membership Interest Purchase Agreement (Horizon Health Corp /De/)
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 Section 9.01 will be asserted and resolved as follows:
(a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under Section 9.1 is asserted against or sought to be collected from such Indemnified Party by a person Person other than Seller, Seller Purchaser or their affiliates any Affiliate of Seller or Purchaser (a "Third Party Claim"), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs has knowledge that a third party intends to assert a claim against the Indemnifying Indemnified Party's ability to protect its interests, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim to the extent that the Indemnifying Party's ability to defend has been actually prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (Dispute Period whether the "Notice Period") Indemnifying Party disputes its liability to the Indemnified Party under Section 9.1 and whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a9.2(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be actively and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying PartyParty (but only with the consent of the Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damages or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full pursuant to Section 9.1). To the extent the Claim is solely for money damages, the The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing; PROVIDED, HOWEVER, that the Indemnified Party may, at its the sole cost and expenseexpense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this Section 9.2(a)(i), file during the Notice Period any motion, answer or other pleadings or take any other action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party interests; and which is not prejudicialPROVIDED FURTHER, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, that if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i9.2(a)(i), and except as specifically provided in this Section 10.4(a)(i)the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under Section 9.1 with respect to such Third Party Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Third Party Claim pursuant to this Section 10.4(a9.2(a), or if the Indemnifying Party gives such notice but fails to prosecute actively and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Dispute Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to in a final conclusion reasonable manner and in good faith or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; providedPROVIDED, howeverHOWEVER, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii9.2(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying PartyParty in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii9.2(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will promptly reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii9.2(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to .
(iii) If the Indemnifying Party of notifies the initiation of any discussions relating Indemnified Party that it does not dispute its liability to the settlement of a Indemnified Party with respect to the Third Party Claim under Section 9.1 or fails to allow notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to participate thereinthe Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the Indemnifying Party under Section 9.01 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent.
(b) In the event any Indemnified Party should have a claim under Section 9.1 against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been actually prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Loss in the amount specified in the Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under Section 9.1 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(c) In the event of any Loss resulting from a misrepresentation or breach of warranty as to which an Indemnified Party would be entitled to claim indemnity under Section 9.1 but for the provisions of Section 9.1(c), such Indemnified Party shall nevertheless deliver a written notice to the Indemnifying Party containing the information that would be required in a Claim Notice or an Indemnity Notice, as applicable, with respect to such Loss. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described therein or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Claim Notice or Indemnity Notice, as the case may be, the Loss specified in the notice will be conclusively deemed to have been incurred by the Indemnified Party for purposes of making the determination set forth in Section 9.1(c). If the Indemnifying Party has timely disputed the claim described in such Claim Notice or Indemnity Notice, as the case may be, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(d) Except in the case of fraud or intentional breaches of this Agreement, the remedies provided in this Article 9 shall be exclusive and shall preclude the assertion by any party hereto of any other rights, or the seeking by such party of any other remedies against any other party hereto, in respect of any Loss of such party that is covered by the indemnification obligations of any other party hereto under Section 9.1; PROVIDED, HOWEVER, that nothing in this Section 9.2(c) shall preclude any party hereto from seeking the specific performance by any other party hereto of any of such other party's obligations hereunder.
(e) Each Indemnified Party will use its commercially reasonable efforts to collect insurance proceeds to which it is entitled under applicable insurance policies in respect of any Loss as to which such Indemnified Party is seeking indemnification under this Article 9.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 Section 9.01 will be asserted and resolved as follows:
(a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under Section 9.01 is asserted against or sought to be collected from such Indemnified Party by a person Person other than Seller, the Company or any Affiliate of the Company or of a Purchaser or their affiliates (a "Third Party Claim"), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (Dispute Period whether the "Notice Period") Indemnifying Party disputes its liability to the Indemnified Party under Section 9.01 and whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a9.02(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party (but only with the consent of the Indemnified Party, which consent will not be unreasonably withheld, in the case of any settlement that provides for any relief other than the payment of monetary damages as to which the Indemnified Party will be indemnified in full). To The Indemnifying Party will be deemed to have waived its right to dispute its liability to the extent Indemnified Party under Section 9.01 with respect to any Third Party Claim as to which it elects to control the Claim is solely for money damages, the defense. The Indemnifying Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any compromise or settlement thereof. Notwithstanding the foregoing; provided, however, that the Indemnified Party may, at its the sole cost and expenseexpense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this clause (i), file during the Notice Period any motion, answer or other pleadings or take any other action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party interests; and which is not prejudicialprovided further, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, that if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(iclause (i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participationseparate counsel, except as provided in the preceding sentence and except that the Indemnifying Party will pay the costs and expenses of such separate counsel if (x) in the Indemnified Party's good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to be represented by separate counsel because a conflict or potential conflict exists between the Indemnifying Party and the Indemnified Party which makes representation of both parties inappropriate under applicable standards of professional conduct or (y) the named parties to such Third Party Claim include both the Indemnifying Party and the Indemnified Party and the Indemnified Party determines in good faith, based on advice of counsel, that defenses are available to it that are unavailable to the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under Section 9.01 with respect to such Third Party Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Third Party Claim pursuant to this Section 10.4(a9.02(a), or if the Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion in good faith or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(iiclause (ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying PartyParty in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(iiclause (ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to the Indemnifying Party of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate therein.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been prejudiced thereby.such
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 will Section 11.01 shall be asserted and resolved only as follows:
(a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under Section 11.01 is asserted against or sought to be collected from such Indemnified Party by a person Person other than Seller, a Seller or any Affiliate of a Seller or of Purchaser or their affiliates (a "Third Party Claim"), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (Dispute Period whether the "Notice Period") Indemnifying Party disputes its liability to the Indemnified Party under Section 11.01 and whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a11.02(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party (but only with the consent of the Indemnified Party, which consent will not be unreasonably withheld, in the case of any settlement that 50 provides for any relief other than the payment of monetary damages as to which the Indemnified Party will be indemnified in full). To The Indemnifying Party will be deemed to have waived its right to dispute its liability to the extent Indemnified Party under Section 11.01 with respect to any Third Party Claim as to which it elects to control the Claim is solely for money damages, the defense. The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing; provided, however, that the Indemnified Party may, at its the sole cost and expenseexpense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this Section 11.02(a)(i), file during the Notice Period any motion, answer or other pleadings or take any other action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party interests; and which is not prejudicialprovided further, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, that if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i11.02(a)(i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participationseparate counsel except as provided in the preceding sentence and except that the Indemnifying Party will pay the costs and expenses of such separate counsel if (x) in the Indemnified Party's good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to be represented by separate counsel because a conflict or potential conflict exists between the Indemnifying Party and the Indemnified Party which makes representation of both parties inappropriate under applicable standards of professional conduct or (y) the named parties to such Third Party Claim include both the Indemnifying Party and the Indemnified Party and the Indemnified Party determines in good faith, based on advice of counsel, that defenses are available to it that are unavailable to the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under Section 11.01 with respect to such Third Party Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Third Party Claim pursuant to this Section 10.4(a11.02(a), or if the Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion in good faith or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii11.02(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness within the Dispute Period that the Indemnifying Party disputes its liability hereunder to 51 the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying PartyParty in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii11.02(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii11.02(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to .
(iii) If the Indemnifying Party of notifies the initiation of any discussions relating Indemnified Party that it does not dispute its liability to the settlement of a Indemnified Party with respect to the Third Party Claim under Section 11.01 or fails to allow notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to participate thereinthe Indemnified Party with respect to such Third Party Claim, the Loss arising from such Third Party Claim will be conclusively deemed a liability of the Indemnifying Party under Section 11.01 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by arbitration in accordance with Section 11.02(c).
(b) In the event any Indemnified Party should have has a claim under Section 11.01 against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Loss arising from the claim specified in such Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under Section 11.01 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by the Bankruptcy Court.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Majestic Investor Capital Corp)
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 SECTION 10.01 will be asserted and resolved as follows:
(a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under SECTION 10.01 is asserted against or sought to be collected from such Indemnified Party by a person Person other than Seller, Purchaser Sellers or their affiliates any Affiliates of Sellers or of Purchasers (a "Third Party ClaimTHIRD PARTY CLAIM"), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (Dispute Period whether the "Notice Period") Indemnifying Party disputes its liability to the Indemnified Party under SECTION 10.01 and whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying indemnifying Party notifies nofifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(aSECTION 10.02(A), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party (but only with the consent of the Indemnified Party, which consent will not be unreasonably withheld in the case of any settlement as to which the Indemnified Party will be indemnified in full). To The Indemnifying Party will be deemed to have waived its right to dispute its liability to the extent Indemnified Party under SECTION 10.01 with respect to any Third Party Claim as to which it elects to control the Claim is solely for money damages, the defense. The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing; PROVIDED, HOWEVER, that the Indemnified Party may, at its the sole cost and expenseexpense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this Section 10.02(a)(i), file during the Notice Period any motion, answer or other pleadings or take any other action that the Indemnified Party may deem is reasonably necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If interests; and PROVIDED FURTHER, that if requested by the Indemnifying Party, the Indemnified Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(iSECTION 10.02(A)(I), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participationseparate counsel except as provided in the preceding sentence and except that the Indemnifying Party will pay the costs and expenses of such separate counsel if (x) in the Indemnified Party's good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to be represented by separate counsel because a conflict or potential conflict exists between the Indemnifying Party and the Indemnified Party or (y) the named parties to such Third Party Claim include both the Indemnifying Party and the Indemnified Party and the Indemnified Party determines in good faith, based on advice of counsel, that defenses are available to it that are unavailable to the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under SECTION 10.01 with respect to such Third Party Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Third Party Claim pursuant to this Section 10.4(aSECTION 10.02(A), or if the Indemnifying Party gives such notice but fails to prosecute diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion in good faith or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; providedPROVIDED, howeverHOWEVER, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(iiSECTION 10.02(A)(II), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying PartyParty in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(iiSECTION 10.02(A)(II) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will bear all costs and expenses and reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(iiSECTION 10.02(A)(II), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to .
(iii) If the Indemnifying Party of notifies the initiation of any discussions relating Indemnified Party that it does not dispute its liability to the settlement of a Indemnified Party with respect to the Third Party Claim under SECTION 10.01 or fails to allow notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to participate thereinthe Indemnified Party with respect to such Third Party Claim, the Loss arising from such Third Party Claim will be conclusively deemed a liability of the Indemnifying Party under SECTION 10.01 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(b) In the event any Indemnified Party should have a claim under SECTION 10.01 against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party Subject to an Indemnifying Party pursuant to this Section 10.4SECTION 9.01, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Loss arising from the claim specified in such Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under SECTION 10.01 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand following the final determination thereof. If the 50 Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
Appears in 1 contract
Samples: Purchase Agreement (Pioneer Standard Electronics Inc)
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 SECTION 10.01 will be asserted and resolved as follows:
(a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under SECTION 10.01 is asserted against or sought to be collected from such Indemnified Party by a person Person other than Seller, Sellers or any Affiliate of Sellers or of Purchaser or their affiliates (a "Third Party ClaimTHIRD PARTY CLAIM"), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (Dispute Period whether the "Notice Period") Indemnifying Party disputes its liability to the Indemnified Party under SECTION 10.01 and whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(aSECTION 10.03(A), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party (but only with the consent of the Indemnified Party, which consent will not be unreasonably withheld, in the case of any settlement that provides for any relief other than the payment of monetary damages as to which the Indemnified Party will be indemnified in full). To The Indemnifying Party will be deemed to have waived its right to dispute its liability to the extent Indemnified Party under SECTION 10.01 with respect to any Third Party Claim as to which it elects to control the Claim is solely for money damages, the defense. The Indemnifying Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any compromise or settlement thereof. Notwithstanding the foregoing; PROVIDED, HOWEVER, that the Indemnified Party may, at its the sole cost and expenseexpense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this clause (i), file during the Notice Period any motion, answer or other pleadings or take any other action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party interests; and which is not prejudicialPROVIDED FURTHER, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, that if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(iclause (i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participationseparate counsel, except as provided in the preceding sentence and except that the Indemnifying Party will pay the costs and expenses of such separate counsel if (x) in the Indemnified Party's good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to be represented by separate counsel because a conflict or potential conflict exists between the Indemnifying Party and the Indemnified Party which makes representation of both parties inappropriate under applicable standards of professional conduct or (y) the named parties to such Third Party Claim include both the Indemnifying Party and the Indemnified Party and the Indemnified Party determines in good faith, based on advice of counsel, that defenses are available to it that are unavailable to the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under SECTION 10.01 with respect to such Third Party Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Third Party Claim pursuant to this Section 10.4(aSECTION 10.03(A), or if the Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion in good faith or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any compromise or settlement thereof; providedPROVIDED, howeverHOWEVER, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(iiclause (ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying PartyParty in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(iiclause (ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject .
(iii) If the Indemnifying Party notifies the Indemnified Party that it does not dispute its liability to the above terms Indemnified Party with respect to the Third Party Claim under SECTION 10.01 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss arising from such Third Party Claim will be conclusively deemed a liability of this Section 10.4(a)(ii)the Indemnifying Party under SECTION 10.01 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party may participate in, but not control, any defense or settlement controlled by and the Indemnified Party pursuant will proceed in good faith to this Section 10.4(a)(ii)negotiate a resolution of such dispute, and if not resolved through negotiations within the Indemnifying Party will bear its own costs and expenses with respect to Resolution Period, such participation. The Indemnified Party dispute shall give sufficient prior notice to the Indemnifying Party be resolved by litigation in a court of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate thereincompetent jurisdiction.
(b) In the event any Indemnified Party should have a claim under SECTION 10.01 against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Loss arising from the claim specified in such Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under SECTION 10.01 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(c) Except with respect to a Claim Notice or Indemnity Notice as to which notice is timely given on or prior to the termination date (which such claim shall continue until the related claim for indemnification has been satisfied or otherwise resolved), the obligations of Sellers to indemnify and hold harmless Purchaser and the Company pursuant to this ARTICLE X (except for any breach of a representation or warranty contained in SECTION 2.01, 2.02, 2.04, or 2.11 or to a breach of a covenant contained in SECTION 1.05, 13.03 or 13.05), shall terminate at the close of business on the 60th day following the date that is eighteen months following the Closing Date.
Appears in 1 contract
Samples: Purchase Agreement (Viewpoint Corp)
Method of Asserting Claims. All Subject to Section 8.1, all claims for indemnification under this Article VIII by any person entitled to party claiming indemnification hereunder (the an "Indemnified Party") under this Article 10 will be asserted and resolved as follows:.
(a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under this Article VIII is asserted against or sought to be collected from such Indemnified Party by a person Person other than Seller, Purchaser either the parties hereto or their affiliates any Affiliate of the parties hereto (a "Third Party Claim"), the Indemnified Party shall deliver a notice written notification of its claim such Third Party Claim specifying the nature of and basis for such Third Party Claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of such Third Party Claim (a "Claim Notice") with reasonable promptness to the party against whom a claim for indemnification is being asserted hereunder (an "Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party"). If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim except to the extent that the Indemnifying Party's ability to defend is prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party within thirty fifteen (3015) calendar days after following receipt of the Claim Notice (the "Notice Dispute Period") whether the Indemnifying Party accepts or disputes its liability to the Indemnified Party under this Article VI and whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a)8.4, then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnifying Party to a final conclusion or will be settled or, at the discretion of the Indemnifying Party, to settle such Third Party Claim (but only with the consent of the Indemnified Party, which shall not be unreasonably withheld, in the case of any settlement that provides for any relief other than the payment of monetary damages or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full pursuant to this Article VIII). To Subject to the extent the Claim is solely for money damagesforegoing, the Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing; provided, however, that the Indemnified Party may, at its sole the cost and expenseexpense of the Indemnifying Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this Section 8.4(a)(i), file during the Notice Period any motion, answer or other pleadings or take any other action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party interests; and which is not prejudicialprovided, in the reasonable judgment of the Indemnifying Partyfurther, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, that if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide full cooperation to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i)8.4 and, and except as specifically provided in this Section 10.4(a)(i)the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 10.4(a), or if the Indemnifying Party gives such notice but fails to prosecute diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to the Indemnifying Party of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate therein.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been prejudiced thereby.Notwithstanding
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any person Person entitled to indemnification hereunder (the "Indemnified Party") under this Article 10 will be asserted and resolved as follows:
(a) In the event any claim or demand, for which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, is asserted against or sought to be collected from such Indemnified Party by a person Person other than Seller, Purchaser or their affiliates (a "Third Party Claim"), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives written notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period after the Indemnified Party receives written notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interests, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim. The Indemnifying Party will notify the Indemnified Party within thirty (30) calendar days after receipt of the Claim Notice (the "Notice Period") whether the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a), then, subject to the immediately succeeding sentence, the Indemnifying Party will have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party. To the extent the Third Party Claim is solely for money damages, the Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing, the Indemnified Party may, at its sole cost and expense, file during the Notice Period any motion, answer or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person Person asserting the Third Party Claim, or any cross-complaint against any person Person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participation.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 10.4(a), or if the Indemnifying Party gives such notice but fails to prosecute diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person Person asserting the Third Party Claim, or any cross-complaint against any person Person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to the Indemnifying Party of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate therein.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been prejudiced thereby.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any person Person entitled to indemnification hereunder (the "Indemnified Party") under this Article 10 X will be asserted and resolved as follows:
(a) In the event any claim or demand, for which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, is asserted against or sought to be collected or withheld from such Indemnified Party by a person Person other than Seller, Purchaser or their affiliates (a "Third Party Claim"), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") to the Indemnifying Party within thirty forty (3040) calendar days after the Indemnified 49 61 Party receives written notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen thirty (1530) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period after the Indemnified Party receives written notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interests, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim to the extent that the Indemnifying Party demonstrates that it has been materially prejudiced thereby. The Indemnifying Party will notify the Indemnified Party within thirty (30) calendar days after receipt of the Claim Notice (the "Notice Period") whether the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party. To the extent the Claim is solely for money damages, the The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing, the Indemnified Party may, at its sole cost and expense, file during the Notice Period any motion, answer or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person Person asserting the Third Party Claim, or any cross-complaint against any person Person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participation. The Indemnifying Party shall give sufficient prior notice to the Indemnified Party relating to a settlement of a Third Party Claim to allow the Indemnified Party to participate therein.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 10.4(a), or if the Indemnifying Party gives such notice but fails to prosecute diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person Person asserting the Third Party Claim, or any cross-complaint against any person Person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party will not thereafter be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to the Indemnifying Party of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate therein.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 X hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been materially prejudiced thereby.
Appears in 1 contract
Samples: Asset Sale Agreement (Integrated Healthcare Holdings)
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 SECTION 10.02 or SECTION 10.03 will be asserted and resolved as follows:
(a) In the event any claim or demand, for which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, is asserted against or sought to be collected from such Indemnified Party by a person other than Seller, Purchaser or their affiliates (a "Third Party Claim"), the The Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice to the Indemnifying Party within thirty (30) calendar days after of any claim by a third party which may give rise to a claim by the Indemnified 49 61 Party receives notice 45 against the Indemnifying Party (a "THIRD PARTY CLAIM") under SECTION 10.02 or SECTION 10.03, stating the nature and basis of such claims and the estimated amount, to the extent known, of the Loss arising out of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the . The Indemnified Party. If the Indemnified Party fails 's failure or delay to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim will not constitute a waiver of the Indemnified Party's rights, unless and thereby materially impairs only to the extent that the Indemnifying Party's ability to protect its interests, defend has been prejudiced by such failure or delay of the Indemnified Party. The Indemnified Party shall give written notice to the Indemnifying Party will of legally served claims of third parties within twenty (20) days after receipt, but failure to give or delay in giving such notice shall not be obligated to indemnify affect any rights of the Indemnified Party with respect unless and only to such Third Party Claim. The the extent that the Indemnifying Party will notify is prejudiced by such failure or delay of the Indemnified Party Party.
(i) If, within thirty (30) calendar days after receipt of the Claim Notice (the "Notice Period") whether such notice, the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend advises the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party desires to will defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a), then, subject to the immediately succeeding sentence, the Indemnifying Party will have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedingsat its expense, which proceedings will be prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party. To the extent the Claim is solely for money damages, the Indemnifying Party will have full control of then as long as such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoingis being conducted, the Indemnified Party may, at its sole cost and expense, file during the Notice Period any motion, answer or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and which is shall not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of settle such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with shall afford the Indemnifying Party and its counsel commercially reasonable assistance in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim defending against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participation.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Third Party Claim pursuant to this Section 10.4(aSECTION 10.04(a), or if the Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion in good faith or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any compromise or settlement thereof; providedPROVIDED, howeverHOWEVER, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(iiclause (ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying PartyParty in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(iiclause (ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the The Indemnifying Party may participate retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(iiclause (ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to .
(iii) If the Indemnifying Party of notifies the initiation of any discussions relating Indemnified Party that it does not dispute its liability to the settlement of a Indemnified Party with respect to the Third Party Claim under SECTION 10.03 or fails to allow notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to participate thereinthe Indemnified Party with respect to such Third Party Claim, the Loss arising from such Third Party Claim will be conclusively deemed a liability of the Indemnifying Party under SECTION 10.03 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by arbitration in accordance with paragraph (c) of this SECTION 10.04.
(b) In the event any Indemnified Party should have a claim under SECTION 10.03 against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Loss arising from the claim specified in such Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under SECTION 10.03 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by arbitration in accordance with paragraph (c) of this SECTION 10.04.
(c) Any dispute submitted to arbitration pursuant to this SECTION 10.04 shall be finally and conclusively determined by the decision of a board of arbitration consisting of three (3) members (hereinafter sometimes called the "BOARD OF ARBITRATION") selected as hereinafter provided. Each of the Indemnified Party and the Indemnifying Party shall select one (1) member and the third member shall be selected by mutual agreement of the other members, or if the other members fail to reach agreement on a third member within twenty (20) days after their selection, such third member shall thereafter be selected by the American Arbitration Association upon application made to it for a third member possessing expertise or experience appropriate to the dispute jointly by the Indemnified Party and the Indemnifying Party. The Board of Arbitration shall meet in Indianapolis, Indiana or such other place as a majority of the members of the Board of Arbitration determines more appropriate, and shall reach and render a decision in writing (concurred in by a majority of the members of the Board of Arbitration) with respect to the amount, if any, which the Indemnifying Party is required to pay to the Indemnified Party in respect of a claim filed by the Indemnified Party. In connection with rendering its decisions, the Board of Arbitration shall adopt and follow such rules and procedures as a majority of the members of the Board of Arbitration deems necessary or appropriate, PROVIDED that the Board of Arbitration adheres to the provisions of this Agreement. To the extent practical, decisions of the Board of Arbitration shall be rendered no more than thirty (30) days following commencement of proceedings with respect thereto. The Board of Arbitration shall cause its written decision to be delivered to the Indemnified Party and the Indemnifying Party. Any decision made by the Board of Arbitration (either prior to or after the expiration of such thirty (30) calendar day period) shall be final, binding and conclusive on the Indemnified Party and the Indemnifying Party and entitled to be enforced to the fullest extent permitted by law and entered in any court of competent jurisdiction. Each party to any arbitration shall bear its own expense in relation thereto, including but not limited to such party's attorneys' fees, if any, and the expenses and fees of the Board of Arbitration shall be divided between the Indemnifying Party and the Indemnified Party in the same proportion as the portion of the related claim determined by the Board of Arbitration to be payable to the Indemnified Party bears to the portion of such claim determined not to be so payable.
Appears in 1 contract
Samples: Stock Purchase Agreement (Steinway Musical Instruments Inc)
Method of Asserting Claims. All claims for indemnification by -------------------------- any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 will Section 11.01 shall be asserted and resolved only as ------------- follows:
(a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under Section 11.01 is asserted against ------------- or sought to be collected from such Indemnified Party by a person Person other than Seller, a Seller or any Affiliate of a Seller or of Purchaser or their affiliates (a "Third Party Claim"), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (Dispute Period whether the "Notice Period") Indemnifying Party disputes its liability to the Indemnified Party under Section ------- 11.01 and whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, ----- to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a11.02(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to ---------------- defend, with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party. To Party (but only with the extent the Claim is solely for money damages, the Indemnifying Party will have full control consent of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing, the Indemnified Party mayParty, at its sole cost and expense, file during the Notice Period any motion, answer or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and which is consent will not prejudicialbe unreasonably withheld, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate in, but not control, any defense or settlement case of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(isettlement that
(a) (i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses ----------- with respect to such participationseparate counsel except as provided in the preceding sentence and except that the Indemnifying Party will pay the costs and expenses of such separate counsel if (x) in the Indemnified Party's good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to be represented by separate counsel because a conflict or potential conflict exists between the Indemnifying Party and the Indemnified Party which makes representation of both parties inappropriate under applicable standards of professional conduct or (y) the named parties to such Third Party Claim include both the Indemnifying Party and the Indemnified Party and the Indemnified Party determines in good faith, based on advice of counsel, that defenses are available to it that are unavailable to the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under Section 11.01 with respect to such Third Party ------------- Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Third Party Claim pursuant to this Section 10.4(a11.02(a), or if the ---------------- Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion in good faith or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii11.02(a)(ii), if -------------------- the Indemnifying Party has notified the Indemnified Party with reasonable promptness within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying PartyParty in the manner provided in clause (iii) below, the Indemnifying Party will not be required ------------ to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii11.02(a)(ii) or of the Indemnifying Party's participation -------------------- therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii11.02(a)(ii), and the Indemnifying Party will bear its own -------------------- costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to .
(iii) If the Indemnifying Party of notifies the initiation of any discussions relating Indemnified Party that it does not dispute its liability to the settlement of a Indemnified Party with respect to the Third Party Claim under Section 11.01 or fails to allow notify the ------------- Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to participate therein.the Indemnified Party with respect to such Third Party Claim, the Loss arising from such Third Party Claim will be conclusively deemed a liability of the Indemnifying Party under Section ------- 11.01 and the Indemnifying Party shall pay the amount of such Loss to the ----- Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by arbitration in accordance with Section 11.02(c). ----------------
(b) In the event any Indemnified Party should have has a claim under Section ------- 11.01 against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, ----- the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Loss arising from the claim specified in such Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under Section 11.01 ------------- and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by the Bankruptcy Court.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Majestic Star Casino LLC)
Method of Asserting Claims. All claims for indemnification by -------------------------- any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 Section 8.01 will be asserted and resolved as ------------ follows:
(a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under Section 8.01 is asserted against or ------------ sought to be collected from such Indemnified Party by a person Person other than Seller, Purchaser or their affiliates any Affiliate of Seller or Purchaser (a "Third Party Claim"), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to Escrow Agent and the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Escrow Agent and the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (Dispute Period whether the "Notice Period") Indemnifying Party disputes its liability to the Indemnified Party under Section 8.02 and whether ------------ the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Escrow Agent and the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a8.02(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will --------------- have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be reasonably, vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying PartyParty (but only with the consent of the Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damages or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full by reason of Section 8.03). To the extent the Claim is solely for money damages, the The Indemnifying Party will ------------ have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing; provided, however, that the Indemnified Party may, -------- ------- at its the sole cost and expenseexpense of the Indemnified Party, at any time subsequent to the delivery of a Claim Notice to the Indemnified Party and prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this Section 8.02(a)(i), file during the Notice Period any motion, answer or other ------------------ pleadings or take any other action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party interests; and which is not prejudicialprovided further, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, that if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the -------- ------- Indemnified Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest; and provided, orfurther, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than that the Indemnified Party or any may choose -------- ------- separate counsel at the sole cost and expense of its affiliates)the Indemnified Party in the event that a conflict of interest arises between the Indemnified Party and the Indemnifying Party. The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i8.02(a)(i), and except ------------------ as specifically provided in this Section 10.4(a)(i)the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under Section 8.02 with respect to such Third ------------ Party Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 10.4(a)prosecute reasonably, or if the Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to in a final conclusion reasonable manner and in good faith or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by -------- ------- the Indemnified 50 62 Party, the Indemnifying Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii8.02(a)(ii), if the Indemnifying Party has ------------------- notified the Escrow Agent and the Indemnified Party with reasonable promptness within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying PartyParty in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii8.02(a)(ii) or of the Indemnifying Party's participation ------------------- therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii8.02(a)(ii), and the Indemnifying Party will bear its own costs and ------------------- expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to .
(iii) If the Indemnifying Party of notifies the initiation of any discussions relating Escrow Agent and the Indemnified Party that it does not dispute its liability to the settlement of a Indemnified Party with respect to the Third Party Claim to allow under Section 8.02, then the ------------ Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the Indemnifying Party under Section 8.02 and the ------------ Escrow Agent or the Indemnifying Party (as applicable) shall pay the amount of such Loss to participate thereinthe Indemnified Party on demand. If the Indemnifying Party has disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(b) In the event any Indemnified Party should have a claim under Section 8.02 against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax ------------ Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Escrow Agent and the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Escrow Agent and the Indemnified Party that it does not dispute the claim described in such Indemnity Notice, then the Loss in the amount specified in the Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under Section 8.02 and ------------ the Escrow Agent or the Indemnifying Party (as applicable) shall pay the amount of such Loss to the Indemnified Party on demand. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 Section 8.01 will be asserted and resolved as follows:
(a) In the event order for an Indemnified Party to be entitled to any indemnification provided for under Section 8.01 in respect of, arising out of or involving a claim or demand, for which demand made by any Person not a party hereto (an "Indemnifying Party") would be liable for to this Agreement against the Damages to an Indemnified Party, is asserted against or sought to be collected from such Indemnified Party by a person other than Seller, Purchaser or their affiliates (a "Third Party Claim"), the Indemnified Party shall must deliver 51 57 a notice of its claim (a "Claim Notice") Notice to the Indemnifying Party within thirty (30) calendar days Business Days after the receipt by such Indemnified 49 61 Party receives of written notice of such the Third Party Claim; provided, however, that notice failure to give such Claim Notice shall be not affect the indemnification provided hereunder except to the extent the Indemnifying Party within fifteen (15) calendar days after receipt of shall have been actually prejudiced as a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period after the Indemnified Party receives notice result of such failure.
(b) If a Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interests, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim. The Indemnifying Party will notify the Indemnified Party within thirty (30) calendar days after receipt of the Claim Notice (the "Notice Period") whether the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party is made against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a), then, subject to the immediately succeeding sentence, the Indemnifying Party will have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party. To the extent the Claim is solely for money damages, the Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing, the Indemnified Party may, at its sole cost and expense, file during the Notice Period any motion, answer or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will shall be relieved of its obligations hereunder entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested counsel selected by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, which counsel must be reasonably satisfactory to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participation.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 10.4(a), or if the Indemnifying Party gives such notice but fails to prosecute diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, provided that if requested by the Indemnified 50 62 Party, the all Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability to the Indemnified Party Parties with respect to such Third Party Claim and if such dispute is resolved jointly acknowledge to the Indemnified Party its right to indemnity pursuant hereto in favor respect of the entirety of such claim (as such claim may be modified through written agreement of the parties or arbitration hereunder) and provide assurances reasonably satisfactory to the Indemnified Party that the Indemnifying PartyParties will be financially able to satisfy such claim in full if it is decided adversely. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will shall not be required liable to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and legal expenses subsequently incurred by the Indemnifying Indemnified Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(iidefense thereof (except as hereinafter provided), but shall continue to pay for any expenses of investigation or any Loss suffered. If the Indemnifying Party may participate inassumes such defense, but not control, any defense or settlement controlled by the Indemnified Party pursuant shall have the right to this Section 10.4(a)(iiparticipate in the defense thereof and to employ counsel, at its own expense (except as hereinafter provided), and separate from the counsel employed by the Indemnifying Party. Notwithstanding the foregoing, if (i) the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to not assume the Indemnifying Party of the initiation of any discussions relating to the settlement defense of a Third Party Claim with counsel satisfactory to allow the Indemnified Party within five (5) Business Days of any Claim Notice, or (ii) legal counsel for the Indemnified Party notifies the Indemnifying Party that there are or may be legal defenses available to participate thereinthe Indemnified Party or to other Indemnified Parties which are different from or additional to those available to the Indemnifying Party, which, if the Indemnified Party and the Indemnifying Party were to be represented by the same counsel, would constitute a conflict of interest for such counsel or prejudice prosecution of the defenses available to such Indemnified Party, or (iii) the Indemnifying Party shall assume the defense of a Third Party Claim and fail to diligently and vigorously prosecute such defense in a timely manner, then in each such case the Indemnified Party, by notice to the Indemnifying Party, may employ its own counsel and control the defense of the Third Party Claim and the Indemnifying Party shall be liable for the reasonable fees, charges and disbursements of counsel employed by the Indemnified Party; and the Indemnified Party shall be promptly reimbursed for any such fees, charges and disbursements, as and when incurred. Whether the Indemnifying Party or the Indemnified Party controls the defense of any Third Party Claim, the parties hereto shall cooperate in the defense thereof. Such cooperation shall include the retention and provision to the counsel of the controlling party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party shall have the right to settle, compromise or discharge a Third Party Claim (other than any such Third Party Claim in which criminal conduct is alleged) without the Indemnified Party's consent if such settlement, compromise or discharge
(i) constitutes a complete and unconditional discharge and release of all Indemnified Parties, and (ii) provides for no relief other than the payment of monetary damages and such monetary damages are paid in full by the Indemnifying Party, and in all other cases may not so settle without the prior written consent of the Indemnified Party.
(bc) In the event any Indemnified Party should have a claim under Section 8.01 against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been actually prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails 52 58 to notify the Indemnified Party within the Dispute Period as to whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Loss in the amount specified in the Indemnity Notice will be conclusively deemed a Liability of the Indemnifying Party under Section 8.01 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand. If the Indemnifying Party has timely disputed its Liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by arbitration as provided in Article 11.
(d) The indemnification provisions of this Article VIII shall constitute the sole and exclusive remedy of the parties hereto, for any inaccuracy, untruth, incompleteness or other breach of any representation or warranty contained in or made pursuant to this Agreement or for any breach of or failure to perform any covenant or agreement made in this Agreement or otherwise arising out of the contemplated transactions, and the parties each waive any other remedy, which they or any other Person entitled to indemnification hereunder may have at law or in equity with respect thereto. The amount of Losses suffered by any Person entitled to indemnification shall be reduced by an amount equal to any insurance recovery received by such Person with respect to such Loss and shall be reduced or increased by any Tax benefit or detriment attributable to the realization of such Loss and any Tax benefit or detriment attributable to the proper accounting of the Tax consequences of the receipt of any indemnification payment payable hereunder.
(e) Notwithstanding anything contained in this Agreement to the contrary, at and after the Closing, no Seller shall be entitled to any indemnification, right of contribution or other right of recovery from either Target Company in connection with any claim made by or which could be made by an Indemnified Party against a Target Company or which a Target Company could be liable for, all of which are irrevocably waived and released by each Seller.
(f) Any payment under this Article VIII shall be treated for tax purposes as an adjustment of the Purchase Price to the extent such characterization is proper and permissible under relevant Tax Laws, or, alternatively, by Purchaser as an offset to a Tax benefit item, if such characterization is proper under such Tax Laws.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Microdyne Corp)
Method of Asserting Claims. All claims Claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") under this Article 10 Party will be asserted and resolved as follows:.
(a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity is asserted against or sought to be collected from such Indemnified Party by a person Person other than Seller, Purchaser or their affiliates the Parties (a "“Third Party Claim"”), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim to the extent that the Indemnifying Party’s ability to defend is prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (Dispute Period whether the "Notice Period") Indemnifying Party accepts or disputes its liability to the Indemnified Party and whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a)Claim, then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted or defended by the Indemnifying Party to a final conclusion or will be settled at the reasonable discretion of the Indemnifying PartyParty (but only with the consent of the Indemnified Party in its sole discretion in the case of any settlement that provides for any relief other than the payment of monetary damages or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full). To Subject to the extent the Claim is solely for money damagesforegoing, the Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing; provided, however, that the Indemnified Party may, at its sole the cost and expenseexpense of the Indemnifying Party, at any time prior to the Indemnifying Party’s delivery of the notice referred to in the first sentence of this Section (i), file during the Notice Period any motion, answer or other pleadings or take any other action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party interests; and which is not prejudicialprovided, in the reasonable judgment of the Indemnifying Partyfurther, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, that if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i)and, and except as specifically provided in this Section 10.4(a)(i)the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under Section with respect to such Third Party Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Third Party pursuant to this Section 10.4(a)Claim, or if the Indemnifying Party gives such notice but any time thereafter fails to prosecute or defend vigorously and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Dispute Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion in good faith or will be settled at the reasonable discretion of the Indemnified PartyParty (provided that the Indemnified Party shall give the Indemnifying Party prior notice of such settlement). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereofthereof subject to the foregoing sentence; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii)Section, if the Indemnifying Party has notified the Indemnified Party with reasonable promptness within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying PartyParty in the manner provided in Subsection (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's ’s defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's ’s participation therein at the Indemnified Party's ’s request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii)Section, and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to .
(iii) If the Indemnifying Party of notifies the initiation of any discussions relating Indemnified Party that it accepts its indemnification liability to the settlement of a Indemnified Party with respect to the Third Party Claim or fails to allow notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to participate thereinthe Indemnified Party with respect to such Third Party Claim, the loss identified in the Claim Notice, as finally determined, will be conclusively deemed a liability of the Indemnifying Party and the Indemnifying Party shall pay the amount of such loss to the Indemnified Party on demand. If the Indemnifying Party timely disputes its liability with respect to such Third Party Claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(b) In the event any Indemnified Party should have a claim for indemnification against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure or delay by any Indemnified Party to give the Indemnity Notice shall not impair such party's ’s rights hereunder except to the extent that an Indemnifying Party demonstrates is prejudiced by such failure or delay. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the loss indemnified in the Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand. If the Indemnifying Party has been prejudiced therebytimely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
Appears in 1 contract
Samples: Technology Assignment and License Agreement (Apollo Education Group Inc)
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "an “Indemnified Party"”) under this Article 10 will be asserted and resolved as follows:
(a) In the event any claim or demand, for which a party hereto (an "“Indemnifying Party"”) would be liable for the Damages to an Indemnified Party, is asserted against or sought to be collected from such an Indemnified Party by a person other than Seller, Purchaser or their affiliates (a "“Third Party Claim"”), the Indemnified Party shall deliver give a notice of its claim (a "“Claim Notice"”) to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives written notice of such Third Party Claim; provided, however, that notice shall be provided given by the Indemnified Party to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by against the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period after the Indemnified Party receives written notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ’s ability to protect its interests, or does not give the Claim Notice within the Survival Period, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim. The Indemnifying Party will notify the Indemnified Party within thirty (30) calendar days after receipt of the Claim Notice (the "“Notice Period"”) whether the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party. To the extent the Claim is solely for money damages, the The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing, the Indemnified Party may, at its sole cost and expense, file during the Notice Period any motion, answer or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's ’s action. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participation.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 10.4(a), or if the Indemnifying Party gives such notice but fails to prosecute diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's ’s defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation). Subject to the above terms of this Section 10.4(a)(ii), the Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to the Indemnifying Party of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate therein.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax ClaimParty, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) to the Indemnifying PartyParty within the Survival Period. (The term "“Indemnity Notice" ” shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's ’s rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been prejudiced thereby.
Appears in 1 contract
Samples: Asset Purchase Agreement (Horizon Health Corp /De/)
Method of Asserting Claims. All claims for indemnification under this Article 7 by any person Person entitled to indemnification hereunder (the "an “Indemnified Party"”) under this Article 10 7 will be asserted and resolved as follows:
(a) In the event any claim or demand, for which a party Party hereto (an "“Indemnifying Party"”) would be liable for the Damages to an Indemnified Party, is asserted against or sought to be collected from such an Indemnified Party by a person Person other than SellerShareholder, Purchaser or their affiliates Affiliates (a "“Third Party Claim"”), the Indemnified Party shall deliver give a notice of its claim (a "“Claim Notice"”) to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives written notice of such Third Party Claim; provided, however, that notice shall be provided given by the Indemnified Party to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by against the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period after the Indemnified Party receives written notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ’s ability to protect its interests, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim. The Indemnifying Party will notify the Indemnified Party within thirty (30) calendar days after receipt of the Claim Notice (the "“Notice Period"”) whether the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a7.4(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party. To the extent the Claim is solely for money damages, the The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing, the Indemnified Party may, at its sole cost and expense, file during the Notice Period any motion, answer or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii7.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's ’s action. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person Person asserting the Third Party Claim, or any cross-complaint against any person Person (other than the Indemnified Party or any of its affiliatesAffiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i7.4(a)(i), and except as specifically provided in this Section 10.4(a)(i7.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participation.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 10.4(a7.4(a), or if the Indemnifying Party gives such notice but fails to prosecute diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person Person asserting the Third Party Claim, or any cross-complaint against any person Person (other than the Indemnifying Party or any of its affiliatesAffiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii7.4(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's ’s defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation7.4(a)(ii). Subject to the above terms of this Section 10.4(a)(ii7.4(a)(ii), the Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii7.4(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to the Indemnifying Party of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate therein.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax ClaimParty, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) to the Indemnifying Party. (The term "“Indemnity Notice" ” shall mean written notification of a claim for indemnity under Article 10 7 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.47.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's Party’s rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been prejudiced thereby.
Appears in 1 contract
Samples: Stock Purchase Agreement (Horizon Health Corp /De/)
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 Section 10.01 will be asserted and resolved as follows:
(a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under Section 10.01 is asserted against or sought to be collected from such Indemnified Party by a person Person other than Seller, Purchaser Sellers or their affiliates any Affiliates of Sellers or of Purchasers (a "Third Party Claim"), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (Dispute Period whether the "Notice Period") Indemnifying Party disputes its liability to the Indemnified Party under Section 10.01 and whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a10.02(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party (but only with the consent of the Indemnified Party, which consent will not be unreasonably withheld in the case of any settlement as to which the Indemnified Party will be indemnified in full). To The Indemnifying Party will be deemed to have waived its right to dispute its liability to the extent Indemnified Party under Section 10.01 with respect to any Third Party Claim as to which it elects to control the Claim is solely for money damages, the defense. The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing; provided, however, that the Indemnified Party may, at its the sole cost and expenseexpense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this Section 10.02(a)(i), file during the Notice Period any motion, answer or other pleadings or take any other action that the Indemnified Party may deem is reasonably necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If interests; and provided further, that if requested by the Indemnifying Party, the Indemnified Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i10.02(a)(i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participationseparate counsel except as provided in the preceding sentence and except that the Indemnifying Party will pay the costs and expenses of such separate counsel if (x) in the Indemnified Party's good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to be represented by separate counsel because a conflict or potential conflict exists between the Indemnifying Party and the Indemnified Party or (y) the named parties to such Third Party Claim include both the Indemnifying Party and the Indemnified Party and the Indemnified Party determines in good faith, based on advice of counsel, that defenses are available to it that are unavailable to the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under Section 10.01 with respect to such Third Party Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Third Party Claim pursuant to this Section 10.4(a10.02(a), or if the Indemnifying Party gives such notice but fails to prosecute diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion in good faith or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii10.02(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying PartyParty in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii10.02(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will bear all costs and expenses and reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii10.02(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to .
(iii) If the Indemnifying Party of notifies the initiation of any discussions relating Indemnified Party that it does not dispute its liability to the settlement of a Indemnified Party with respect to the Third Party Claim under Section 10.01 or fails to allow notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to participate thereinthe Indemnified Party with respect to such Third Party Claim, the Loss arising from such Third Party Claim will be conclusively deemed a liability of the Indemnifying Party under Section 10.01 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(b) In the event any Indemnified Party should have a claim under Section 10.01 against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party Subject to an Indemnifying Party pursuant to this Section 10.49.01, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby.. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Loss arising from the claim specified in such Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under Section 10.01 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction. back to top
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 will XI shall be asserted and resolved as follows:
(a) In the event THIRD PARTY CLAIMS. If any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under this Article XI is asserted against or sought to be collected from such Indemnified Party by a person Person other than Seller, Purchaser a Shareholder or their affiliates Other Holder or the Parent (a "Third Party ClaimTHIRD PARTY CLAIM"), the Indemnified Party shall deliver a give written notice of its claim (a the "Claim NoticeTHIRD PARTY CLAIM NOTICE") and the details thereof including copies of all relevant pleadings, documents and information to the Indemnifying Party within a period of thirty (30) calendar days after following the assertion of the Third Party Claim against the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to (the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party"THIRD PARTY CLAIM NOTICE PERIOD"). If the Indemnified Party fails to provide the Third Party Claim Notice within such applicable time period after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsNotice Period, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim to the extent that the Indemnifying Party's ability to defend has been prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party within a period of thirty (30) calendar days after receipt of the Third Party Claim Notice by the Indemnifying Party (the "Notice PeriodTHIRD PARTY CLAIM RESPONSE PERIOD"):
(i) whether the Indemnifying Party disputes its liability to the Indemnified Party under this Article XI with respect to such Third Party Claim; and
(ii) whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) . If the Indemnifying Party notifies the Indemnified Party within the Notice Third Party Claim Response Period that the Indemnifying Party does not dispute its indemnity obligations and desires to defend the Indemnified Party with respect to against the Third Party Claim pursuant to this Section 10.4(a)Claim, then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, at its sole cost and expenseexpense shall defend, with counsel reasonably satisfactory to the Indemnified Party, such Third Party Claim by all appropriate proceedings, which proceedings will be diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party. To Party (with the extent the Claim is solely for money damages, the Indemnifying Party will have full control consent of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing, the Indemnified Party may, at its sole cost and expense, file during the Notice Period any motion, answer or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action, which consent shall not be unreasonably withheld). If requested by the Indemnifying Party, the The Indemnified Party agrees, will cooperate in such defense at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may, at the Indemnifying Party's cost and expense, at any time prior to the Indemnifying Party's delivery of the notice referred to in the last sentence of the preceding paragraph, file any pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests. The Indemnified Party, at its expense, may participate in, but not control, any defense or settlement of any Third Party Claim controlled conducted by the Indemnifying Party pursuant to this Section 10.4(a)(i11.4(a), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participation.
(ii) . If the Indemnifying Party fails to notify the Indemnified Party within the Notice Third Party Claim Response Period that the Indemnifying Party does not dispute its indemnity obligations and desires to defend the Indemnified Third Party pursuant to this Section 10.4(a), Claim or if the Indemnifying Party gives such notice but fails to prosecute diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to shall defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to in a final conclusion reasonable manner and in good faith or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by (with the Indemnified 50 62 Party, the Indemnifying Party agrees, at the sole cost and expense consent of the Indemnifying Party, to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the consent shall not be unreasonably withheld). The Indemnifying Party or any of will, at its affiliates)sole cost and expense, cooperate in such defense. Notwithstanding the foregoing provisions of this Section 10.4(a)(ii)paragraph, if the Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability is determined not to the Indemnified Party with respect to be liable for such Third Party Claim pursuant to the last paragraph of this Section 11.4(a) and if such dispute is resolved in favor of the Indemnifying PartySection 13.12, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's requestpursuant to this paragraph, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigationdefense. Subject to the above terms of this Section 10.4(a)(ii), If the Indemnifying Party may participate in, but not control, any defense or settlement controlled by notifies the Indemnified Party pursuant that it does not dispute its liability to the Indemnified Party with respect to the Third Party Claim under this Article XI or is determined under Section 10.4(a)(ii)13.12 to be liable to indemnify the Indemnified Party, the actual Losses as finally determined will be conclusively deemed a liability of the Indemnifying Party under this Article XI, and the Indemnifying Party will bear shall pay the amount of such Losses to the Indemnified Party on demand. If the Indemnifying Party notifies the Indemnified Party within the Third Party Claim Response Period that the Indemnifying Party disputes its own costs and expenses liability to the Indemnified Party with respect to such participation. The Indemnified Party shall give sufficient prior notice to claim, the Indemnifying Party of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate therein.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from and the Indemnified Party or (ii) is will proceed in good faith to negotiate a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount resolution of such claimdispute, and if not resolved through negotiations within a period of thirty (30) days from the date of such Notice, such dispute shall be resolved by arbitration in accordance with Section 13.12 hereof.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been prejudiced thereby.
Appears in 1 contract
Samples: Merger Agreement (Red Hat Inc)
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 SECTION 11.01 will be asserted and resolved as follows:
(a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under SECTION 11.01 is asserted against or sought to be collected from such Indemnified Party by a person Person other than Seller, Seller or any Affiliate of Seller or of Purchaser or their affiliates (a "Third Party ClaimTHIRD PARTY CLAIM"), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (Dispute Period whether the "Notice Period") Indemnifying Party disputes its liability to the Indemnified Party under SECTION 11.01 and whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(aSECTION 11.02(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party (but only with the consent of the Indemnified Party, which consent will not be unreasonably withheld, in the case of any settlement that provides for any relief other than the payment of monetary damages as to which the Indemnified Party will be indemnified in full). To The Indemnifying Party will be deemed to have waived its right to dispute its liability to the extent Indemnified Party under SECTION 11.01 with respect to any Third Party Claim as to which it elects to control the Claim is solely for money damages, the defense. The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing; PROVIDED, HOWEVER, that the Indemnified Party may, at its the sole cost and expenseexpense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this SECTION 11.02(a)(i), file during the Notice Period any motion, answer or other pleadings or take any other action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party interests; and which is not prejudicialprovided further, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, that if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(iSECTION 11.02(a)(i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participationseparate counsel except as provided in the preceding sentence and except that the Indemnifying Party will pay the costs and expenses of such separate counsel if (x) in the Indemnified Party's good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to be represented by separate counsel because a conflict or potential conflict exists between the Indemnifying Party and the Indemnified Party which makes representation of both parties inappropriate under applicable standards of professional conduct or (y) the named parties to such Third Party Claim include both the Indemnifying Party and the Indemnified Party and the Indemnified Party determines in good faith, based on advice of counsel, that defenses are available to it that are unavailable to the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under SECTION 11.01 with respect to such Third Party Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Third Party Claim pursuant to this Section 10.4(aSECTION 11.02(a), or if the Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion in good faith or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(iiSECTION 11.02(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying PartyParty in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(iiSECTION 11.02(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(iiSECTION 11.02(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to .
(iii) If the Indemnifying Party of notifies the initiation of any discussions relating Indemnified Party that it does not dispute its liability to the settlement of a Indemnified Party with respect to the Third Party Claim under SECTION 11.01 or fails to allow notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to participate thereinthe Indemnified Party with respect to such Third Party Claim, the Loss arising from such Third Party Claim will be conclusively deemed a liability of the Indemnifying Party under SECTION 11.01 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by arbitration in accordance with SECTION 11.02(c).
(b) In the event any Indemnified Party should have a claim under SECTION 11.01 against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Loss arising from the claim specified in such Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under SECTION 11.01 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by arbitration in accordance with SECTION 11.02(c).
(c) Any dispute submitted to arbitration pursuant to this SECTION 11.02 shall be finally and conclusively determined by the decision of a board of arbitration consisting of three (3) members (hereinafter sometimes called the "BOARD OF ARBITRATION") selected as hereinafter provided. Each of the Indemnified Party and the Indemnifying Party shall select one (1) member and the third member shall be selected by mutual agreement of the other members, or if the other members fail to reach agreement on a third member within twenty (20) days after their selection, such third member shall thereafter be selected by the American Arbitration Association upon application made to it for a third member possessing expertise or experience appropriate to the dispute jointly by the Indemnified Party and the Indemnifying Party. The Board of Arbitration shall meet in Las Vegas, Nevada or such other place as a majority of the members of the Board of Arbitration determines more appropriate, and shall reach and render a decision in writing (concurred in by a majority of the members of the Board of Arbitration) with respect to the amount, if any, which the Indemnifying Party is required to pay to the Indemnified Party in respect of a claim filed by the Indemnified Party. In connection with rendering its decisions, the Board of Arbitration shall adopt and follow such rules and procedures as a majority of the members of the Board of Arbitration deems necessary or appropriate. To the extent practical, decisions of the Board of Arbitration shall be rendered no more than thirty (30) days following commencement of proceedings with respect thereto. The Board of Arbitration shall cause its written decision to be delivered to the Indemnified Party and the Indemnifying Party. Any decision made by the Board of Arbitration (either prior to or after the expiration of such thirty (30) day period) shall be final, binding and conclusive on the Indemnified Party and the Indemnifying Party and entitled to be enforced to the fullest extent permitted by law and entered in any court of competent jurisdiction. Each party to any arbitration shall bear its own expense in relation thereto, including but not limited to such party's attorneys' fees, if any, and the expenses and fees of the Board of Arbitration shall be divided between the Indemnifying Party and the Indemnified Party in the same proportion as the portion of the related claim determined by the Board of Arbitration to be payable to the Indemnified Party bears to the portion of such claim determined not to be so payable.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 Section 8.01 will be asserted and resolved as follows:
(a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under Section 8.01 is asserted against or sought to be collected from such Indemnified Party by a person Person other than Seller, a Purchaser Indemnified Party or their affiliates Seller Indemnified Party (a "“Third Party Claim"”), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim, but only to the extent that the Indemnifying Party’s ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (Dispute Period whether the "Notice Period") Indemnifying Party disputes its liability to the Indemnified Party under Section 8.02 and whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a8.02(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be reasonably, vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying PartyParty (but only with the consent of the Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damages or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full). To the extent the Claim is solely for money damages, the The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing; provided, however, that the Indemnified Party may, at its the sole cost and expenseexpense of the Indemnified Party, at any time subsequent to the delivery of a Claim Notice to the Indemnified Party and prior to the Indemnifying Party’s delivery of the notice referred to in the first sentence of this Section 8.02(a)(i), file during the Notice Period any motion, answer or other pleadings or take any other action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party interests; and which is not prejudicialprovided further, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, that if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest; and provided, orfurther, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than that the Indemnified Party or any may choose separate counsel at the sole cost and expense of its affiliates)the Indemnified Party in the event that a conflict of interest arises between the Indemnified Party and the Indemnifying Party. The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i8.02(a)(i), and except as specifically provided in this Section 10.4(a)(i)the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under Section 8.01 with respect to such Third Party Claim.
(ii) If the Indemnifying Party fails to notify assume the Indemnified defense of the Third Party Claim within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 10.4(a), or if the Indemnifying Party gives such notice but fails to prosecute reasonably, vigorously and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to in a final conclusion reasonable manner and in good faith or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii8.02(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying PartyParty in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's ’s defense pursuant to this Section 10.4(a)(ii8.02(a)(ii) or of the Indemnifying Party's ’s participation therein at the Indemnified Party's ’s request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii8.02(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The .
(iii) If the Indemnifying Party notifies the Indemnified Party shall give sufficient prior that it does not dispute its liability to the Indemnified Party with respect to the Third Party Claim under Section 8.01, or if the Indemnifying Party fails to deliver a notice to the Indemnifying Indemnified Party within the Dispute Period, then the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party under Section 8.01 and the Indemnifying Party shall pay the amount of such Loss to participate thereinthe Indemnified Party on demand. If the Indemnifying Party has disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by arbitration in accordance with Section 10.12 below.
(b) In the event any Indemnified Party should have has a claim under Section 8.02 against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's ’s rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice, or if the Indemnifying Party fails to deliver a notice to the Indemnified Party within the Dispute Period, then the Loss in the amount specified in the Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under Section 8.02 and the Indemnifying Party (as applicable) shall pay the amount of such Loss to the Indemnified Party on demand. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by arbitration in accordance with Section 10.12 below.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 Section 8.2 will be asserted and resolved as follows:
(a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under Section 8.2 is asserted against or sought to be collected from such Indemnified Party by a person Person other than Seller, Purchaser AsiaInfo or their affiliates any Affiliate of AsiaInfo (a "“Third Party Claim"”), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Shareholders’ Agent on behalf of any Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim only to the extent that the Indemnifying Party’s ability to defend has been actually and materially prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (the "Notice Period") Dispute Period whether the Indemnifying Party desires, at disputes its liability to the sole cost Indemnified Party under Section 8.2 and expense of whether the Indemnifying Party, Party elects to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires elects to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a8.3(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, at its the sole cost and expenseexpense of the Indemnifying Party with counsel reasonably satisfactory to the Indemnified Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying PartyParty (but only with the consent of the Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damages or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full pursuant to Section 8.2). To the extent the Claim is solely for money damages, the The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing; provided, however, that the Indemnified Party may, at its the sole cost and expenseexpense of the Indemnified Party, at any time prior to the Indemnifying Party’s delivery of the notice referred to in the first sentence of this clause (i), file during the Notice Period any motion, answer or other pleadings or take any other action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party interests; and which is not prejudicialprovided further, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, that if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(iclause (i), and except as specifically provided in this Section 10.4(a)(i)the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if (a) it irrevocably waives its right to indemnity under Section 8.2 with respect to such Third Party Claim, (b) the amount in controversy exceeds amounts in the Escrow Fund, (c) the Third Party Claim involves relief other than the payment of monetary damages, (d) if a conflict of interest arises between the Indemnifying Party and the Indemnified Party, or (e) events arise (as determined by the Indemnified Party in good faith) that impair the ability of the Indemnifying Party to fully, vigorously and diligently defend the Third Party Claim. In such event, the Indemnifying Party shall have the right, in its sole discretion, to settle any such claim; provided that with respect to the matters set forth in clauses (b), (c) (d) and (e) of this Section 8.3(a)(i) any such settlement shall be subject to the consent of the Indemnifying Party (not to be unreasonably withheld, delayed or conditioned). In the event that the Shareholders’ Agent has consented to any such settlement, the Shareholders’ Agent shall not object to the amount of any claim by the Indemnified Party against the Escrow Fund for indemnity with respect to such settlement.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires elects to defend the Indemnified Third Party Claim pursuant to this Section 10.4(a8.3(a), or if the Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Dispute Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to in a final conclusion reasonable manner and in good faith or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(iiclause (ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying PartyParty in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's ’s defense pursuant to this Section 10.4(a)(iiclause (ii) or of the Indemnifying Party's ’s participation therein at the Indemnified Party's ’s request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(iiclause (ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to .
(iii) If the Indemnifying Party of notifies the initiation of any discussions relating Indemnified Party that it does not dispute its liability to the settlement of a Indemnified Party with respect to the Third Party Claim under Section 8.3 or fails to allow notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to participate thereinthe Indemnified Party with respect to such Third Party Claim, the Indemnifiable Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the Indemnifying Party under Section 8.2(a) and the Indemnifying Party shall pay the amount of such Indemnifiable Loss to the Indemnified Party on demand. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within 60 days of receipt of the Claim Notice (the “Resolution Period”), such dispute shall be resolved by arbitration in accordance with Section 9.7.
(b) In the event any Indemnified Party should have a claim under Section 8.3 against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's ’s rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been actually and materially prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Indemnifiable Loss in the amount specified in the Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under Section 8.2(a) or Section 8.2(b), as applicable, and the Indemnifying Party shall pay the amount of such Indemnifiable Loss to the Indemnified Party on demand. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by arbitration in accordance with Section 9.8.
Appears in 1 contract
Samples: Business Combination Agreement (Asiainfo Holdings Inc)
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 will Section 8.3 shall be asserted and resolved as follows:
(aA) In the event any claim or demand, demand for which a party hereto (an "Indemnifying Party") Party would be liable for the Damages to an Indemnified Party, Party under Section 8.3 hereof is asserted against or sought to be collected from such Indemnified Party by a person other than Seller, Purchaser or their affiliates (a "Third Party Claim"), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party ClaimParty; provided, however, that notice shall except as set forth in Section 8.4(D) hereof, no Claim Notice will be provided required with respect to any action, suit or proceeding that is in existence and of which the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by has Knowledge on the Indemnified PartyClosing Date. If the Indemnified Party fails to provide the Indemnifying Party with the Claim Notice within such applicable time period after required by the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs preceding sentence at least ten (10) calendar days before the date on which the Indemnifying Party's ability to protect its interestsdefend against the Third Party Claim is materially prejudiced by the Indemnified Party's failure to provide such Claim Notice, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such portion of the Third Party Claim. The Claim as to which the Indemnifying Party's ability to defend has been prejudiced by such failure of the Indemnified Party, except where the Indemnified Party itself did not receive the Claim Notice in time to meet the ten (10) day prior notice requirement.
(B) Upon receipt of a Claim Notice, the Indemnifying Party will shall notify the Indemnified Party with reasonable promptness, but in all events within thirty fifteen (3015) calendar days after receipt of the Claim Notice thereof (the "Notice Period") ), of whether the Indemnifying Party disputes its liability to the Indemnified Party hereunder with respect to such Third Party Claim and whether the Indemnifying Party desires, at the sole cost and expense Expense of the Indemnifying Party, to defend the Indemnified Party against such Third Party Claim.
(iC) If the Indemnifying Party notifies the Indemnified Party within the Notice Period or at any time thereafter that the Indemnifying Party does not dispute its liability to the Indemnified Party and that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a)Article VIII, then, subject to the immediately succeeding sentence, then the Indemnifying Party will shall have the right to defend, at its sole cost and expenseExpense, such Third Party Claim by all appropriate actions, suits and proceedings. Such actions, which suits and proceedings will shall be diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party (with the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed). To From the extent the Claim is solely for money damagesdate of such notice, the Indemnifying Party will shall have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing, the Indemnified Party may, at its sole cost and expense, file during the Notice Period any motion, answer or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participation.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 10.4(a), or if the Indemnifying Party gives such notice but fails to prosecute diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to the Indemnifying Party of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate therein.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been prejudiced thereby.defense
Appears in 1 contract
Samples: Stock Purchase Agreement (Century Business Services Inc)
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 SECTION 10.02 will be asserted and resolved as follows:
(a) No claims will be made hereunder unless the total amount of such claims exceeds $100,000 at which time claims in excess of such amount will be subject to indemnification.
(b) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under SECTION 10.02 is asserted against or sought to be collected from such Indemnified Party by a person Person other than SellerSellers, the Company, any Subsidiary, Purchaser or their affiliates any Affiliate of any Seller or Purchaser (a "Third Party ClaimTHIRD PARTY CLAIM"), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (Dispute Period whether the "Notice Period") Indemnifying Party disputes its liability to the Indemnified Party under SECTION 10.02 and whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(aSECTION 10.03(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying PartyParty (but only with the consent of the Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damages). To the extent the Claim is solely for money damages, the The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing; PROVIDED, HOWEVER, that the Indemnified Party may, at its the sole cost and expenseexpense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this clause (i), file during the Notice Period any motion, answer or other pleadings or take any other action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party interests; and which is not prejudicialPROVIDED FURTHER, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, that if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(iclause (i), and except as specifically provided in this Section 10.4(a)(i)the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under SECTION 10.02 with respect to such Third Party Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Third Party Claim pursuant to this Section 10.4(aSECTION 10.03(a), or if the Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Dispute Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to in a final conclusion reasonable manner and in good faith or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; providedPROVIDED, howeverHOWEVER, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(iiclause (ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying PartyParty in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(iiclause (ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(iiclause (ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The .
(iii) If the Indemnifying Party notifies the Indemnified Party that it does not dispute its liability to the Indemnified Party with respect to the Third Party Claim under SECTION 10.02 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the Indemnifying Party under SECTION 10.02 and the Indemnifying Party shall give sufficient prior notice pay the amount of such Loss to the Indemnified Party on demand. In the event any payments under this Agreement are then due by the Indemnified Party to the Indemnifying Party of (whether as a direct obligation or a joint and several obligation together with other Persons), then the initiation of any discussions relating to the settlement of a Third Indemnified Party Claim to allow may, at its election, set off amounts payable under this ARTICLE X against such amounts as they become due. If the Indemnifying Party has timely disputed its liability with respect to participate thereinsuch claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by arbitration in accordance with paragraph (c) of this SECTION 10.03.
(bc) In the event any Indemnified Party should have a claim under SECTION 10.02 against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Loss in the amount specified in the Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under SECTION 10.02 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand. In the event any payments under this Agreement, including any installments payable under clauses (b), (c) OR (d) OF SECTION 1.02, are then or thereafter due by the Indemnified Party to the Indemnifying Party (whether as a direct obligation or a joint and several obligation together with other Persons), then the Indemnified Party may, at its election, set off amounts payable under this ARTICLE X against such amounts as they become due. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by arbitration in accordance with paragraph (c) of this SECTION 10.03.
(d) Any dispute submitted to arbitration pursuant to this SECTION 10.03 shall be finally and conclusively determined by the decision of a single arbitrator through Jams Endispute (hereinafter sometimes called the "ARBITRATOR") selected as hereinafter provided. The arbitrator shall be selected by Jams Endispute upon application made to it for such purpose by the Indemnified Party. The arbitrability of any dispute, claim or controversy shall likewise be determined in such arbitration. Such arbitration proceeding shall be conducted in as expedited a manner as is then permitted by the commercial arbitration rules (formal or informal) of Jams Endispute. The Arbitrator shall conduct its hearings in Santa Barbara, California, and shall reach and render a decision in writing with respect to the amount, if any, which the Indemnifying Party is required to pay to the Indemnified Party in respect of a claim filed by the Indemnified Party. In connection with rendering its decisions, the Arbitrator shall adopt and follow such rules and procedures as it deems necessary or appropriate. To the extent practical, decisions of the Arbitrator shall be rendered no more than thirty (30) days following commencement of proceedings with respect thereto. The Arbitrator shall cause its written decision to be delivered to the Indemnified Party and the Indemnifying Party. Any decision made by the Arbitrator (either prior to or after the expiration of such thirty (30) calendar day period) shall be final, binding and conclusive on the Indemnified Party and the Indemnifying Party and entitled to be enforced to the fullest extent permitted by law and entered in any court of competent jurisdiction. Until any award of costs or expenses, including reasonable attorneys' fees, by the Arbitrator, each party to any arbitration shall bear its own expense in relation thereto, including but not limited to such party's attorneys' fees, if any, and one-half of the expenses and fees of the Arbitrator (which shall be a joint and several obligation of multiple Indemnifying or Indemnified Parties, as the case may be). The parties and the Arbitrator shall have all of the rights and duties relating to discovery provided by Section 1283.05 of the California Code of Civil Procedure, which is hereby made a part of this Agreement, except that the Arbitrator shall have the right to disapprove or to limit any discovery which such Arbitrator deems to be for purposes of delay or otherwise unnecessarily burdensome or oppressive.
(e) The maximum amount of claims made hereunder shall not exceed the lesser of:
(i) the Purchaser's total investment in the Company (including loans or advances), or (ii) $5,000,000, except in the case of fraud by the Sellers, in which case there is no maximum. The maximum liability of any Seller, other than Love, shall be the portion of the Purchase Price received by such Seller.
(f) No claim may be made more than two (2) years from the date of the Closing.
Appears in 1 contract
Samples: Option to Purchase (PDT Inc /De/)
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 Section 10.01 will be asserted and resolved as follows:
(a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under Section 10.01 is asserted against or sought to be collected from such Indemnified Party by a person Person other than SellerPurchaser, Purchaser Seller or their affiliates Parent or any Affiliate of Purchaser, Seller or Parent (a "“Third Party Claim"”), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice setting forth in reasonable detail the specific facts and circumstances pertaining thereto with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs Claim, the Indemnifying Party's ability to protect its interests, the Indemnifying Party will not be obligated ’s obligation to indemnify the Indemnified Party with respect to such Third Party ClaimClaim will be limited to the extent that the Indemnifying Party’s ability to defend has been materially prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (Dispute Period whether the "Notice Period") Indemnifying Party disputes its liability to the Indemnified Party under Section 10.01 and whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a10.02(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party (but only with the consent of the Indemnified Party, which consent will not be unreasonably withheld, in the case of any settlement that provides for any relief other than the payment of monetary damages as to which the Indemnified Party will be indemnified in full). To the extent the Claim is solely for money damages, the The Indemnifying Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any compromise or settlement thereof. Notwithstanding the foregoing; provided, however, that the Indemnified Party may, at its the sole cost and expenseexpense of the Indemnified Party, at any time prior to the Indemnifying Party’s delivery of the notice referred to in the first sentence of this clause (i), file during the Notice Period any motion, answer or other pleadings or take any other action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party interests; and which is not prejudicialprovided further, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, that if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(iclause (i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participationseparate counsel, except as provided in the preceding sentence and except that the Indemnifying Party will pay the costs and expenses of such separate counsel if (x) in the Indemnified Party’s good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to be represented by separate counsel because a conflict or potential conflict exists between the Indemnifying Party and the Indemnified Party or (y) the named parties to such Third Party Claim include both the Indemnifying Party and the Indemnified Party and the Indemnified Party determines in good faith, based on advice of counsel, that defenses are available to it that are unavailable to the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under Section 10.01 with respect to such Third Party Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Third Party Claim pursuant to this Section 10.4(a10.02(a), or if the Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly vigorously and reasonably diligently prosecuted by the Indemnified Party to a final conclusion in good faith or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(iiclause (ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying PartyParty in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's ’s defense pursuant to this Section 10.4(a)(iiclause (ii) or of the Indemnifying Party's ’s participation therein at the Indemnified Party's ’s request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject .
(iii) If the Indemnifying Party notifies the Indemnified Party that it does not dispute its liability to the above terms Indemnified Party with respect to the Third Party Claim under Section 10.01 or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Loss arising from such Third Party Claim will be conclusively deemed a liability of this the Indemnifying Party under Section 10.4(a)(ii)10.01 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party may participate in, but not control, any defense or settlement controlled by and the Indemnified Party pursuant will proceed in good faith to this Section 10.4(a)(ii)negotiate a resolution of such dispute, and if not resolved through negotiations within the Indemnifying Party will bear its own costs and expenses with respect to Resolution Period, such participation. The Indemnified Party dispute shall give sufficient prior notice to the Indemnifying Party be resolved by litigation in a court of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate thereincompetent jurisdiction.
(b) In the event any Indemnified Party should have a claim under Section 10.01 against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's ’s rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been materially prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Loss arising from the claim specified in such Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under Section 10.01 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
Appears in 1 contract
Samples: Stock Purchase Agreement (Danka Business Systems PLC)
Method of Asserting Claims. All claims for indemnification by -------------------------- any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 Section 11.01 will be asserted and resolved as ------------- follows:
(a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under Section 11.01 is asserted against ------------- or sought to be collected from such Indemnified Party by a person Person other than Seller, Seller or any Affiliate of Seller or of Purchaser or their affiliates (a "Third Party Claim"), the ----------------- Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (the "Notice Period") Dispute Period whether the Indemnifying Party disputes its liability to the Indemnified Party under Section 11.01 and whether the Indemnifying Party ------------- desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a11.02(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to ---------------- defend, with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party (but only with the consent of the Indemnified Party, which consent will not be unreasonably withheld, in the case of any settlement that provides for any relief other than the payment of monetary damages as to which the Indemnified Party will be indemnified in full). To The Indemnifying Party will be deemed to have waived its right to dispute its liability to the extent Indemnified Party under Section 11.01 with respect to any Third Party Claim ------------- as to which it elects to control the Claim is solely for money damages, the defense. The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing; provided, however, that the Indemnified Party may, -------- ------- at its the sole cost and expenseexpense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this Section 11.02(a)(i), file during the Notice Period any motion, ------------------- answer or other pleadings or take any other action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party interests; and which is not prejudicialprovided further, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, that if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i------- 11.02
(a) (i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses ----------- with respect to such participationseparate counsel except as provided in the preceding sentence and except that the Indemnifying Party will pay the costs and expenses of such separate counsel if (x) in the Indemnified Party's good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to be represented by separate counsel because a conflict or potential conflict exists between the Indemnifying Party and the Indemnified Party which makes representation of both parties inappropriate under applicable standards of professional conduct or (y) the named parties to such Third Party Claim include both the Indemnifying Party and the Indemnified Party and the Indemnified Party determines in good faith, based on advice of counsel, that defenses are available to it that are unavailable to the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under Section 11.01 with respect to such Third Party ------------- Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Third Party Claim pursuant to this Section 10.4(a11.02(a), or if ---------------- the Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion in good faith or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii11.02(a)(ii), if -------------------- the Indemnifying Party has notified the Indemnified Party with reasonable promptness within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying PartyParty in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii11.02(a)(ii) or of the Indemnifying Party's participation -------------------- therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii11.02(a)(ii), and the Indemnifying Party will bear its own costs -------------------- and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to .
(iii) If the Indemnifying Party of notifies the initiation of any discussions relating Indemnified Party that it does not dispute its liability to the settlement of a Indemnified Party with respect to the Third Party Claim under Section 11.01 or fails to allow ----------- notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to participate therein.the Indemnified Party with respect to such Third Party Claim, the Loss arising from such Third Party Claim will be conclusively deemed a liability of the Indemnifying Party under Section 11.01 and the Indemnifying Party shall pay the amount of such ------------- Loss to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by arbitration in accordance with Section ------- 11.02(c). --------
(b) In the event any Indemnified Party should have a claim under Section 11.01 against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax ------------- Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Loss arising from the claim specified in such Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under Section 11.01 ------------- and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by arbitration in accordance with Section 11.02(c). ----------------
(c) Any dispute submitted to arbitration pursuant to this Section ------- 11.02 shall be finally and conclusively determined by the decision of a board of ----- arbitration consisting of three (3) members (hereinafter sometimes called the "Board of Arbitration") selected as hereinafter provided. Each of the -------------------- Indemnified Party and the Indemnifying Party shall select one (1) member and the third member shall be selected by mutual agreement of the other members, or if the other members fail to reach agreement on a third member within twenty (20) days after their selection, such third member shall thereafter be selected by the American Arbitration Association upon application made to it for a third member possessing expertise or experience appropriate to the dispute jointly by the Indemnified Party and the Indemnifying Party. The Board of Arbitration shall meet in Las Vegas, Nevada or such other place as a majority of the members of the Board of Arbitration determines more appropriate, and shall reach and render a decision in writing (concurred in by a majority of the members of the Board of Arbitration) with respect to the amount, if any, which the Indemnifying Party is required to pay to the Indemnified Party in respect of a claim filed by the Indemnified Party. In connection with rendering its decisions, the Board of Arbitration shall adopt and follow such rules and procedures as a majority of the members of the Board of Arbitration deems necessary or appropriate. To the extent practical, decisions of the Board of Arbitration shall be rendered no more than thirty (30) days following commencement of proceedings with respect thereto. The Board of Arbitration shall cause its written decision to be delivered to the Indemnified Party and the Indemnifying Party. Any decision made by the Board of Arbitration (either prior to or after the expiration of such thirty (30) day period) shall be final, binding and conclusive on the Indemnified Party and the Indemnifying Party and entitled to be enforced to the fullest extent permitted by law and entered in any court of competent jurisdiction. Each party to any arbitration shall bear its own expense in relation thereto, including but not limited to such party's attorneys' fees, if any, and the expenses and fees of the Board of Arbitration shall be divided between the Indemnifying Party and the Indemnified Party in the same proportion as the portion of the related claim determined by the Board of Arbitration to be payable to the Indemnified Party bears to the portion of such claim determined not to be so payable.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") under this Article 10 will be asserted and resolved as follows:
(a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an any Indemnified Party, Party might seek indemnity under Section 18.1 or Section 18.2 is asserted against or sought to be collected from such Indemnified Party by a person Person other than Buyer, IPG or any Affiliate of Seller, Purchaser Buyer or their affiliates IPG (a "Third Party Claim"), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim to the extent that the Indemnifying Party's ability to defend has been materially prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (Dispute Period whether the "Notice Period") Indemnifying Party disputes its liability to the Indemnified Party hereunder and whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a)18.3, then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying PartyParty (but only with the consent of the Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damages or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full pursuant to Section 18.1 or Section 18.2). To the extent the Claim is solely for money damages, the The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing; PROVIDED, HOWEVER, that the Indemnified Party may, at its the sole cost and expenseexpense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this Section 18.3(a)(i) file during the Notice Period any motion, answer or other pleadings or take any other action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party interests; and which is not prejudicialPROVIDED FURTHER, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, that if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i)18.3, and except as specifically provided in this Section 10.4(a)(i)the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under Section 18.3 with respect to such Third Party Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Third Party Claim pursuant to this Section 10.4(a)18.3, or if the Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Dispute Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion in good faith or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; providedPROVIDED, howeverHOWEVER, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agreeswill, at the sole cost and expense of the 61 Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii)18.3, if the Indemnifying Party has notified the Indemnified Party with reasonable promptness within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying PartyParty in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii) 18.3 or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii)18.3, and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to .
(iii) If the Indemnifying Party of notifies the initiation of any discussions relating Indemnified Party that it does not dispute its liability to the settlement of Indemnified Party with respect to a Third Party Claim or fails to allow notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to participate thereinthe Indemnified Party with respect to such Third Party Claim, the Loss in the amount specified in the Claim Notice will be conclusively deemed a liability of the Indemnifying Party, and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by arbitration as provided for in Section 18.4.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that either (i) does not involve involving a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Loss in the amount specified in the Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party hereunder and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
Appears in 1 contract
Samples: Stock Purchase Agreement (Intertape Polymer Group Inc)
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") under this Article 10 will be asserted and resolved as follows:
(a) In the event any claim or demand, for which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, is asserted against or sought to be collected from such Indemnified Party by a person other than Seller, Purchaser or their affiliates (a "Third Party Claim"), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interests, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim. The Indemnifying Party will notify the Indemnified Party within thirty (30) calendar days after receipt of the Claim Notice (the "Notice Period") whether the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a), then, subject to the immediately succeeding sentence, the Indemnifying Party will have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party. To the extent the Claim is solely for money damages, the Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing, the Indemnified Party may, at its sole cost and expense, file during the Notice Period any motion, answer or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participation.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 10.4(a), or if the Indemnifying Party gives such notice but fails to prosecute diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to the Indemnifying Party of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate therein.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been prejudiced thereby.asserted
Appears in 1 contract
Samples: Asset Sale Agreement (Southwest General Hospital Lp)
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 SECTION 4.01 will be asserted and resolved as follows:
(a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under SECTION 4.01 is asserted against or sought to be collected from such Indemnified Party by a person Person other than Seller, Seller or any Affiliate of Seller or of Purchaser or their affiliates (a "Third Party ClaimTHIRD PARTY CLAIM"), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interests, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim. The Indemnifying Party will notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (Dispute Period whether the "Notice Period") Indemnifying Party disputes its liability to the Indemnified Party under SECTION 4.01 and whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(aSECTION 4.02(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party (but only with the consent of the Indemnified Party, which consent will not be unreasonably withheld, in the case of any settlement that provides for any relief other than the payment of monetary damages as to which the Indemnified Party will be indemnified in full). To The Indemnifying Party will be deemed to have waived its right to dispute its liability to the extent Indemnified Party under SECTION 4.01 with respect to any Third Party Claim as to which it elects to control the Claim is solely for money damages, the defense. The Indemnifying Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any compromise or settlement thereof. Notwithstanding the foregoing; PROVIDED, HOWEVER, that the Indemnified Party may, at its sole cost and expense, file during the Notice Period any motion, answer or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, at any time prior to cooperate with the Indemnifying Party's delivery of the notice referred to in the first sentence of this clause (i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and PROVIDED FURTHER, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(iclause (i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Indemnifying Party will bear its own costs and expenses with respect to such participationseparate counsel, except as provided in the preceding sentence and except that the Indemnifying Party will pay the costs and expenses of such separate counsel if (x) in the Indemnified Party's good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to be represented by separate counsel because a conflict or potential conflict exists between the Indemnifying Party and the Indemnified Party or (y) the named parties to such Third Party Claim include both the Indemnifying Party and the Indemnified Party and the Indemnified Party determines in good faith, based on advice of counsel, that defenses are available to it that are unavailable to the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under SECTION 4.01 with respect to such Third Party Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Third Party Claim pursuant to this Section 10.4(aSECTION 4.02(a), or if the Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion in good faith or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any compromise or settlement thereof; providedPROVIDED, howeverHOWEVER, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(iiclause (ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying PartyParty in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(iiclause (ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the The Indemnifying Party may participate retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(iiclause (ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to .
(iii) If the Indemnifying Party of notifies the initiation of any discussions relating Indemnified Party that it does not dispute its liability to the settlement of a Indemnified Party with respect to the Third Party Claim under SECTION 4.01 or fails to allow notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to participate thereinthe Indemnified Party with respect to such Third Party Claim, the Loss arising from such Third Party Claim will be conclusively deemed a liability of the Indemnifying Party under SECTION 4.01 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(b) In the event any Indemnified Party should have a claim under SECTION 4.01 against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Loss arising from the claim specified in such Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under SECTION 4.01 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
Appears in 1 contract
Samples: Beneficial Interest Purchase Agreement (Lease Investment Flight Trust)
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 will IX shall be asserted and resolved as follows:
(a) In the event THIRD PARTY CLAIMS. If any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under this Article IX is asserted against or sought to be collected from such Indemnified Party by a person other than Seller, Purchaser or their affiliates Person (a "THIRD PARTY CLAIM") other than Trek or Watsco (it being understood that claims of Affiliates of Trek and Watsco shall not be considered Third Party Claim"Claims), the Indemnified Party shall deliver a give written notice and the details thereof including copies of its all relevant pleadings, documents and information and (if then known) the amount or the method of computation of the amount of such claim (collectively a "Claim NoticeTHIRD PARTY CLAIM NOTICE") to the Indemnifying Party within a period of thirty (30) calendar days following the assertion of the Third Party Claim against the Indemnified Party (the "THIRD PARTY CLAIM NOTICE PERIOD"), PROVIDED, that a Third Party Claim Notice in respect of any action at law or suit in equity by or against a third person as to which indemnification will be sought shall be given as promptly as practicable after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition action or institution of other formal legal action by the Indemnified Partysuit is commenced. If the Indemnified Party fails to provide the Third Party Claim Notice within such applicable time period after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsNotice Period, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim to the extent that the Indemnifying Party's ability to defend has been prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party within a period of thirty (30) calendar days after its receipt of the Third Party Claim Notice by the Indemnifying Party (the "Notice PeriodTHIRD PARTY CLAIM RESPONSE PERIOD"):
(i) Whether the Indemnifying Party disputes its liability to the Indemnified Party under this Article IX with respect to such Third Party Claim; and
(ii) whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) . If the Indemnifying Party notifies the Indemnified Party within the Notice Third Party Claim Response Period that the Indemnifying Party desires to defend the Indemnified Party with respect to against the Third Party Claim pursuant to this Section 10.4(a)Claim, then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, at its sole cost and expenseexpense shall defend, with counsel reasonably satisfactory to the Indemnified Party, such Third Party Claim by all appropriate proceedings, which proceedings will be diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled or, at the discretion of the Indemnifying Party, will be paid, compromised, or settled (with the consent of the Indemnified Party which shall not be unreasonably withheld or delayed). To The Indemnified Party will cooperate in such defense at the extent the Claim is solely for money damages, sole cost and expense of the Indemnifying Party will have full control of and shall furnish records, information and testimony and attend such defense and conferences, discovery proceedings, including any compromise or settlement thereofhearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. Notwithstanding the foregoing, the The Indemnified Party may, at its sole cost and expense, at any time prior to the Indemnifying Party's delivery of the notice referred to in the last sentence of the preceding paragraph, file during the Notice Period any motion, answer pleadings or take any other pleadings action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates)interests. The Indemnified Party Party, at its expense, may participate in, but not control, any defense or settlement of any Third Party Claim controlled conducted by the Indemnifying Party pursuant to this Section 10.4(a)(i9.4(a), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participation.
(ii) . If the Indemnifying Party fails to notify the Indemnified Party within the Notice Third Party Claim Response Period that the Indemnifying Party desires to defend the Indemnified Third Party pursuant to this Section 10.4(a), Claim or if the Indemnifying Party gives such notice but fails to prosecute diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to shall defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to in a final conclusion reasonable manner and in good faith and will not be paid, compromised or will be settled at (without the discretion consent of the Indemnified PartyIndemnifying Party which shall not be unreasonably withheld or delayed). The Indemnified Indemnifying Party will have full control of shall, at its sole cost and expense, cooperate in such defense and shall furnish records, information and testimony and attend such conferences, discovery proceedings, including any compromise or settlement thereof; providedhearings, however, that if trials and appeals as may be reasonably requested by the Indemnified 50 62 Party, the Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates)connection therewith. Notwithstanding the foregoing provisions of this Section 10.4(a)(ii)paragraph, if the Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability is determined not to the Indemnified Party with respect to be liable for such Third Party Claim pursuant to the last paragraph of this Section 9.4(a) and if such dispute is resolved in favor of the Indemnifying PartySection 9.4(c), the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's requestpursuant to this paragraph, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigationdefense. Subject to the above terms of this Section 10.4(a)(ii), If the Indemnifying Party may participate in, but not control, any defense or settlement controlled by notifies the Indemnified Party pursuant that it does not dispute its liability to the Indemnified Party with respect to the Third Party Claim under this Section 10.4(a)(ii)Article IX or fails to notify the Indemnified Party within the Third Party Claim Response Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the actual Losses of the Indemnified Party as finally determined will be conclusively deemed a liability of the Indemnifying Party under this Article IX, and the Indemnifying Party will bear shall pay the amount of such Losses to the Indemnified Party on demand. If the Indemnifying Party notifies the Indemnified Party within the Third Party Claim Response Period that the Indemnifying Party disputes its own costs and expenses liability to the Indemnified Party with respect to such participation. The Indemnified Party shall give sufficient prior notice to claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within a period of thirty (30) days from the initiation date of any discussions relating such notice, either party may require that such dispute be resolved by arbitration in accordance with Section 9.4(c) hereof. Notwithstanding anything in Section 9.4(a) to the settlement of a Third Party Claim contrary, with respect to allow the Indemnifying Party matters subject to participate therein.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that either indemnification under Section 9.2(a)(ii), (i) does not involve a no Third Party Claim being asserted against or sought to Claims Notice need be collected from the Indemnified Party or given by Watsco, and (ii) is Watsco shall control the negotiations and any defense of such matters in a Seller Tax Claimreasonable manner and in good faith, and shall not pay, compromise or settle any such matter without the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) to the Indemnifying Party. (The term "Indemnity Notice" shall mean prior written notification consent of a claim for indemnity under Article 10 hereof Trek (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair be unreasonably withheld or delayed), it being understood that costs and expenses incurred by Watsco related to such party's rights hereunder except matters shall be Losses for which Watsco shall be entitled to the extent that an Indemnifying Party demonstrates that it has been prejudiced therebyindemnification under Section 9.2(a)(ii), subject to Section 9.6.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification under this Article 10 by any person entitled to indemnification hereunder (the "an “Indemnified Party"”) under this Article 10 will be asserted and resolved as follows:
(a) In the event any claim or demand, for which a party Party hereto (an "“Indemnifying Party"”) would be liable for the Damages to an Indemnified Party, is asserted against or sought to be collected from such an Indemnified Party by a person other than Sellerthe Shareholders, Purchaser or their affiliates Affiliates (a "“Third Party Claim"”), the Indemnified Party shall deliver give a notice of its claim (a "“Claim Notice"”) to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives written notice of such Third Party Claim; provided, however, that notice shall be provided given by the Indemnified Party to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by against the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period after the Indemnified Party receives written notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ’s ability to protect its interests, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim. The Indemnifying Party will notify the Indemnified Party within thirty (30) calendar days after receipt of the Claim Notice (the "“Notice Period"”) whether the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party. To the extent the Claim is solely for money damages, the The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing, the Indemnified Party may, at its sole cost and expense, file during the Notice Period any motion, answer or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's ’s action. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliatesAffiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the above provisions of this Section 10.4(a)(i), in the event of a Tax Claim, any compromise or settlement of proceedings shall be subject to the approval of the Indemnified Party (which approval shall not be unreasonably withheld).
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party STOCK PURCHASE AGREEMENT – Page 36 pursuant to this Section 10.4(a), or if the Indemnifying Party gives such notice but fails to prosecute diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliatesAffiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's ’s defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation). Subject to the above terms of this Section 10.4(a)(ii), the Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to the Indemnifying Party of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate therein.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax ClaimParty, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) to the Indemnifying Party. (The term "“Indemnity Notice" ” shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's Party’s rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been prejudiced thereby.
Appears in 1 contract
Samples: Stock Purchase Agreement (Horizon Health Corp /De/)
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") Party under this Article 10 will IX shall be asserted and resolved as follows:
(a) In the event THIRD PARTY CLAIMS. If any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under this Article IX is asserted against or sought to be collected from such Indemnified Party by a person other than Seller, Purchaser or their affiliates Person (a "THIRD PARTY CLAIM") other than ICP or A&C (it being understood that claims of Affiliates of ICP and A&C shall not be considered Third Party Claim"Claims), the Indemnified Party shall deliver a give written notice and the details thereof including copies of its claim all relevant pleadings, documents and information (collectively a "Claim NoticeTHIRD PARTY CLAIM NOTICE") to the Indemnifying Party within a period of thirty (30) calendar days after following the assertion of the Third Party Claim against the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to (the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party"THIRD PARTY CLAIM NOTICE PERIOD"). If the Indemnified Party fails to provide the Third Party Claim Notice within such applicable time period after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsNotice Period, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim to the extent that the Indemnifying Party's ability to defend has been prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party within a period of thirty (30) calendar days after its receipt of the Third Party Claim Notice by the Indemnifying Party (the "Notice PeriodTHIRD PARTY CLAIM RESPONSE PERIOD"):
(i) Whether the Indemnifying Party disputes its liability to the Indemnified Party under this Article IX with respect to such Third Party Claim; and
(ii) whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) . If the Indemnifying Party notifies the Indemnified Party within the Notice Third Party Claim Response Period that the Indemnifying Party desires to defend the Indemnified Party with respect to against the Third Party Claim pursuant to this Section 10.4(a)Claim, then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, at its sole cost and expenseexpense shall defend, with counsel reasonably satisfactory to the Indemnified Party, such Third Party Claim by all appropriate proceedings, which proceedings will be diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party (with the consent of the Indemnified Party which shall not be unreasonably withheld or delayed). The Indemnified Party will cooperate in such defense at the sole cost and expense of the Indemnifying Party. To the extent the Claim is solely for money damages, the Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing, the The Indemnified Party may, at its sole cost and expense, at any time prior to the Indemnifying Party's delivery of the notice referred to in the last sentence of the preceding paragraph, file during the Notice Period any motion, answer pleadings or take any other pleadings action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates)interests. The Indemnified Party Party, at its expense, may participate in, but not control, any defense or settlement of any Third Party Claim controlled conducted by the Indemnifying Party pursuant to this Section 10.4(a)(i9.4(a), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participation.
(ii) . If the Indemnifying Party fails to notify the Indemnified Party within the Notice Third Party Claim Response Period that the Indemnifying Party desires to defend the Indemnified Third Party pursuant to this Section 10.4(a), Claim or if the Indemnifying Party gives such notice but fails to prosecute diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to shall defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to in a final conclusion reasonable manner and in good faith or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control (with the consent of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agreeswhich shall not be unreasonably withheld or delayed). The Indemnifying Party shall, at the its sole cost and expense of the Indemnifying Partyexpense, to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates)such defense. Notwithstanding the foregoing provisions of this Section 10.4(a)(ii)paragraph, if the Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability is determined not to the Indemnified Party with respect to be liable for such Third Party Claim pursuant to the last paragraph of this Section 9.4(a) and if such dispute is resolved in favor of the Indemnifying PartySection 9.4(c), the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's requestpursuant to this paragraph, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigationdefense. Subject to the above terms of this Section 10.4(a)(ii), If the Indemnifying Party may participate in, but not control, any defense or settlement controlled by notifies the Indemnified Party pursuant that it does not dispute its liability to the Indemnified Party with respect to the Third Party Claim under this Section 10.4(a)(ii)Article IX or fails to notify the Indemnified Party within the Third Party Claim Response Period whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim, the actual Losses as finally determined will be conclusively deemed a liability of the Indemnifying Party under this Article IX, and the Indemnifying Party will bear shall pay the amount of such Losses to the Indemnified Party on demand. If the Indemnifying Party notifies the Indemnified Party within the Third Party Claim Response Period that the Indemnifying Party disputes its own costs and expenses liability to the Indemnified Party with respect to such participation. The Indemnified Party shall give sufficient prior notice to claim, the Indemnifying Party of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate therein.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from and the Indemnified Party or (ii) is will proceed in good faith to negotiate a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount resolution of such claimdispute, and if not resolved through negotiations within a period of thirty (30) days from the date of such notice, such dispute shall be resolved by arbitration in accordance with Section 9.4(c) hereof. Notwithstanding the foregoing, ICP and A&C agree that following Closing A&C shall control the defense and settlement of the matter described in Section 9.2(c).) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been prejudiced thereby.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification under this Article 10 by any person Person entitled to indemnification hereunder (the "an “Indemnified Party"”) under this Article 10 will be asserted and resolved as follows:
(a) In the event any claim or demand, for which a party hereto (an "“Indemnifying Party"”) would be liable for the Damages to an Indemnified Party, is asserted against or sought to be collected from such an Indemnified Party by a person Person other than Seller, Purchaser or their affiliates Affiliates (a "“Third Party Claim"”), the Indemnified Party shall deliver give a notice of its claim (a "“Claim Notice"”) to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives written notice of such Third Party Claim; provided, however, that notice shall be provided given by the Indemnified Party to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by against the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period after the Indemnified Party receives written notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ’s ability to protect its interests, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim. The Indemnifying Party will notify the Indemnified Party within thirty (30) calendar days after receipt of the Claim Notice (the "“Notice Period"”) whether the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, at its sole cost and expense, such Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party. To the extent the Claim is solely for money damages, the The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing, the Indemnified Party may, at its sole cost and expense, file during the Notice Period any motion, answer or other pleadings that the Indemnified Party may deem necessary or appropriate to protect its interests or those of the Indemnifying Party and which is not prejudicial, in the reasonable judgment of the Indemnifying Indemnified Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's ’s action. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person Person asserting the Third Party Claim, or any cross-complaint against any person Person (other than the Indemnified Party or any of its affiliatesAffiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participation.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Period that the Indemnifying Party desires to defend the Indemnified Party pursuant to this Section 10.4(a), or if the Indemnifying Party gives such notice but fails to prosecute diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness that the Indemnifying Party disputes its liability to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to the Indemnifying Party of the initiation of any discussions relating to the settlement of a Third Party Claim to allow the Indemnifying Party to participate therein.
(b) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been prejudiced thereby.this
Appears in 1 contract
Samples: Asset Acquisition and Contribution Agreement (Horizon Health Corp /De/)
Method of Asserting Claims. All claims Claims for indemnification by any person entitled to indemnification hereunder (Indemnified Party under Section 7.1 must be made within the "Indemnified Party") under this survival periods set forth in Article 10 VI and will be asserted and resolved as follows:
(a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under Section 7.1 is asserted against or sought to be collected from such Indemnified Party by a person Person other than the Seller, Purchaser the Buyer, the Company or their affiliates any Affiliate of the Seller, the Buyer or the Company (a "Third Party ClaimTHIRD PARTY CLAIM"), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim to the extent that the Indemnifying Party is prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (Dispute Period whether the "Notice Period") Indemnifying Party accepts or disputes its liability to the Indemnified Party under Section 7.1 and whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a)7.2, then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be reasonably prosecuted or defended by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying PartyParty (but only with the consent of the Indemnified Party in its sole discretion in the case of any settlement that provides for any relief other than the payment of monetary damages with respect to which the Indemnified Party will be obligated or that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full pursuant to Section 7.1). To Subject to the extent the Claim is solely for money damagesforegoing, the Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof. Notwithstanding the foregoing; PROVIDED, HOWEVER, that the Indemnified Party may, at its sole the cost and expenseexpense of the Indemnifying Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this Section 7.2(a)(i) after giving reasonable notice to the Indemnifying Party, file during the Notice Period any motion, answer or other pleadings or take any other action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party interests; and which is not prejudicialPROVIDED, in the reasonable judgment of the Indemnifying PartyFURTHER, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, that if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(i)7.2 and, and except as specifically provided in this Section 10.4(a)(i)the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under Section 7.1 with respect to such Third Party Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Third Party pursuant to this Section 10.4(a)Claim, or if the Indemnifying Party gives such notice but any time thereafter fails to reasonably prosecute diligently or defend or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Dispute Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all reasonably appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion in good faith or will be settled at the reasonable discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; providedPROVIDED, howeverHOWEVER, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(ii)7.2, if the Indemnifying Party has notified the Indemnified Party with reasonable promptness within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying PartyParty in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(ii) 7.2 or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(ii)7.2, and the Indemnifying Party will bear its own costs and expenses with respect to such participation. The Indemnified Party shall give sufficient prior notice to .
(iii) If the Indemnifying Party of notifies the initiation of any discussions relating Indemnified Party that it accepts its indemnification liability to the settlement of a Indemnified Party with respect to the Third Party Claim under Section 7.1 or fails to allow notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability to participate thereinthe Indemnified Party with respect to such Third Party Claim, the Loss identified in the Claim Notice, as finally determined, will be conclusively deemed a liability of the Indemnifying Party under Section 7.1 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand. If the Indemnifying Party timely disputes its liability with respect to such Third Party Claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(b) In the event any Indemnified Party should have a claim under Section 7.1 against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure or delay by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates is prejudiced by such failure or delay. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Loss indemnified in the Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under Section 7.1 to the extent that the costs incurred by the Indemnified Party in connection with such claims are commercially reasonable and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party on demand. If the Indemnifying Party has been prejudiced therebytimely disputed its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
Appears in 1 contract
Method of Asserting Claims. All claims for indemnification by any person entitled to indemnification hereunder (the "Indemnified Party") under this Article 10 Party will be asserted and resolved as follows:
(a) In the event any claim or demand, for demand in respect of which a party hereto (an "Indemnifying Party") would be liable for the Damages to an Indemnified Party, Party might seek indemnity under Section 12.1 is asserted against or sought to be collected from such Indemnified Party by a person other than Seller, Purchaser or their affiliates third party (a "Third Party ClaimTHIRD PARTY CLAIM"), the Indemnified Party shall deliver a notice of its claim (a "Claim Notice") Notice with reasonable promptness to the Indemnifying Party within thirty (30) calendar days after the Indemnified 49 61 Party receives notice of such Third Party Claim; provided, however, that notice shall be provided to the Indemnifying Party within fifteen (15) calendar days after receipt of a complaint, petition or institution of other formal legal action by the Indemnified Party. If the Indemnified Party fails to provide the Claim Notice within such applicable time period with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim and thereby materially impairs the Indemnifying Party's ability to protect its interestsClaim, the Indemnifying Party will not be obligated to indemnify the Indemnified Party with respect to such Third Party ClaimClaim to the extent that the Indemnifying Party's ability to defend has been irreparably prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party as soon as practicable within thirty (30) calendar days after receipt of the Claim Notice (Dispute Period whether the "Notice Period") Indemnifying Party disputes its liability to the Indemnified Party under Section 12.1 and whether the Indemnifying Party desires, at the its sole cost and expense of the Indemnifying Partyexpense, to defend the Indemnified Party against such Third Party Claim.
(i) i. If the Indemnifying Party notifies the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.4(a12.2(a), then, subject to the immediately succeeding sentence, then the Indemnifying Party will have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at its the sole cost and expenseexpense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party (but only with the consent of the Indemnified Party, which consent will not be unreasonably withheld, in the case of any settlement that provides for any relief other than the payment of monetary damages as to which the Indemnified Party will be indemnified in full). To The Indemnifying Party will be deemed to have waived its right to dispute its liability to the extent Indemnified Party under Section 12.1 with respect to any Third Party Claim as to which it elects to control the Claim is solely for money damages, the defense. The Indemnifying Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any compromise or settlement thereof. Notwithstanding the foregoing; PROVIDED, HOWEVER, that the Indemnified Party may, at its the sole cost and expenseexpense of the Indemnified Party, at any time prior to the Indemnifying Party's delivery of the notice referred to in the first sentence of this clause (i), file during the Notice Period any motion, answer or other pleadings or take any other action that the Indemnified Party may deem reasonably believes to be necessary or appropriate to protect its interests or those of the Indemnifying Party interests; and which is not prejudicialPROVIDED FURTHER, in the reasonable judgment of the Indemnifying Party, to the Indemnifying Party. Except as provided in Section 10.4(a)(ii) hereof, that if an Indemnified Party takes any such action that is prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party will be relieved of its obligations hereunder with respect to the portion of such Third Party Claim prejudiced by the Indemnified Party's action. If requested by the Indemnifying Party, the Indemnified Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnified Party or any of its affiliates). The Indemnified Party may participate retain separate counsel to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.4(a)(iclause (i), and except as specifically provided in this Section 10.4(a)(i), the Indemnified Party will bear its own costs and expenses with respect to such participationseparate counsel, except as provided in the preceding sentence and except that the Indemnifying Party will pay the costs and expenses of such separate counsel if (x) in the Indemnified Party's good faith judgment, it is advisable, based on advice of counsel, for the Indemnified Party to be represented by separate counsel because a conflict or potential conflict exists between the Indemnifying Party and the Indemnified Party which makes representation of both parties inappropriate under applicable standards of professional conduct or (y) the named parties to such Third Party Claim include both the Indemnifying Party and the Indemnified Party and the Indemnified Party determines in good faith, based on advice of counsel, that defenses are available to it that are unavailable to the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party may retain or take over the control of the defense or settlement of any Third Party Claim the defense of which the Indemnifying Party has elected to control if the Indemnified Party irrevocably waives its right to indemnity under Section 12.1 with respect to such Third Party Claim.
(ii) . If the Indemnifying Party fails to notify the Indemnified Party within the Notice Dispute Period that the Indemnifying Party desires to defend the Indemnified Third Party Claim pursuant to this Section 10.4(a12.2(a), or if the Indemnifying indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Notice Period, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be promptly and reasonably prosecuted by the Indemnified Party to a final conclusion in good faith or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including (except as provided in the immediately preceding sentence) any compromise or settlement thereof; providedPROVIDED, howeverHOWEVER, that if requested by the Indemnified 50 62 Party, the Indemnifying Party agreeswill, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to cooperate with the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting, or, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the person asserting the Third Party Claim, or any cross-complaint against any person (other than the Indemnifying Party or any of its affiliates). Notwithstanding the foregoing provisions of this Section 10.4(a)(iiclause (ii), if the Indemnifying Party has notified the Indemnified Party with reasonable promptness within the Dispute Period that the Indemnifying Party disputes its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying PartyParty in the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.4(a)(iiclause (ii) or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. Subject to the above terms of this Section 10.4(a)(ii), the The Indemnifying Party may participate retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.4(a)(iiclause (ii), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
iii. The Indemnified Party shall give sufficient prior notice to If the Indemnifying Party of notifies the initiation of any discussions relating Indemnified Party that it does not dispute its liability to the settlement of a Indemnified Party with respect to the Third Party Claim to allow under Section 12.1, the Loss arising from such Third Party Claim will be conclusively deemed a liability of the Indemnifying Party under Section 12.1 and the Indemnifying shall pay the amount of such Loss to participate thereinthe Indemnified Party within 10 days of demand therefor following the final determination thereof. If the Indemnifying Party disputes its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(b) In the event any Indemnified Party should have a claim under Section 12.1 against any Indemnifying Party hereunder that either (i) does not involve a Third Party Claim being asserted against or sought to be collected from the Indemnified Party or (ii) is a Seller Tax Claim, the Indemnified Party shall deliver an Indemnity Notice (as hereinafter defined) with reasonable promptness to the Indemnifying Party. (The term "Indemnity Notice" shall mean written notification of a claim for indemnity under Article 10 hereof (which claim does not involve a Third Party Claim or is a Seller Tax Claim) by an Indemnified Party to an Indemnifying Party pursuant to this Section 10.4, specifying the nature of and specific basis for such claim and the amount or the estimated amount of such claim.) The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice, the Loss arising from the claim specified in such Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under Section 12.1 and the Indemnifying Party shall pay the amount of such Loss to the Indemnified Party within 10 days of demand therefor following the final determination thereof. If the Indemnifying Party disputes its liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved by litigation in a court of competent jurisdiction.
(c) The indemnification remedies provided in this Agreement shall be exclusive of any other remedies that may be available to the Parties. For purposes of the indemnification provisions hereunder, WWWX and Acquisition Sub shall each have the right of setoff with respect to each Seller's shareholdings in WWWX or ATM. Such right of setoff must be exercised at the respective fair market value of respective shares and may only be exercised 10 days after a demand for indemnification has been unfulfilled.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Worldwide Web Networx Corp)
