Method of Asserting Third-Party Claims. (a) As used in this Agreement, “Notifying Party” refers to any Party who claims entitlement to indemnification under Section 7.02 for losses resulting from a third-party claim. The “Indemnifying Party” refers to the Party obligated to indemnify the Notifying Party under Section 7.02. (b) In the event any Notifying Party is made a defendant in or party to any claim instituted by any third party for which the Notifying Party may be entitled to indemnification under Section 7.02, the Notifying Party shall give the Indemnifying Party prompt notice thereof. The failure to give such notice shall not affect any Notifying Party’s ability to seek reimbursement unless, and only to the extent that, such failure has a detrimental effect on the Indemnifying Party’s ability to defend successfully the claim. The Indemnifying Party shall be entitled to contest and defend such claim, provided that the Indemnifying Party: (i) has a reasonable basis for concluding that such defense may be successful; and (ii) diligently contests and defends such claim. (c) Notice of the intention so to contest and defend shall be given by the Indemnifying Party to the Notifying Party within fifteen (15) business days after the Notifying Party’s notice of such claim. The Indemnifying Party shall use reputable attorneys of its choosing to conduct such contest and defense. The Notifying Party shall be entitled at any time, at its own cost and expense (which expense shall not constitute a Loss for which the Notifying Party can be indemnified under Section 7.02), to participate in such contest and defense and to be represented by attorneys of its own choosing. The Notifying Party shall give the Indemnifying Party notice that it intends to participate in such contest and defense. (d) If the Notifying Party elects to participate in such defense, the Notifying Party shall cooperate with the Indemnifying Party in the conduct of the defense. Whether or not the Notifying Party elects to participate in such defense, neither the Notifying Party nor the Indemnifying Party may concede, settle or compromise any claim without notifying the other Party and without the Indemnifying Party’s consent if the settling party is the Notifying Party, which consent shall not be unreasonably withheld. (e) Notwithstanding any provision in this Agreement to the contrary, if: (i) a claim from a third party seeks relief in the form of a material obligation of the Notifying Party other than an obligation to pay monetary damages; (ii) the subject matter of a claim relates to the ongoing business of the Notifying Party, which claim, if decided against the Notifying Party, would adversely effect the ongoing business (including, without limitation, requiring any material change in the business practices of the Notifying Party) of the Notifying Party; or (iii) the Notifying Party would not be fully indemnified under Section 7.02 or released with respect to such claim, then, in each such case, the Notifying Party shall be entitled to contest and defend such claim, the expense of which shall constitute a Loss for which the Notifying Party can be indemnified under Section 7.02 (and the Indemnifying Party may participate); provided, however, that any settlement or compromise shall require the consent of the Indemnifying Party, which consent shall not be unreasonably withheld, and, if the Notifying Party does not contest and defend such claim, the Indemnifying Party shall then have the right to contest and defend (but not settle) such third party claim. (f) Any dispute between the Parties about the applicability of any Party’s indemnification rights or obligations under Section 7.02 or the method of asserting claims under this Section 7.03 shall be resolved in accordance with the dispute resolution provisions set forth in Article VIII.
Appears in 1 contract
Method of Asserting Third-Party Claims. (a) As used in this Agreement, “Notifying Party” refers to any Party who claims entitlement to indemnification under Section 7.02 8.02 for losses resulting from a third-party claim. The “Indemnifying Party” refers to the Party obligated to indemnify the Notifying Party under Section 7.028.02. *** Material has been omitted pursuant to a request for confidential treatment and filed separately with the SEC.
(b) In the event any Notifying Party is made a defendant in or party to any claim instituted by any third party for which the Notifying Party may be entitled to indemnification under Section 7.028.02, the Notifying Party shall give the Indemnifying Party prompt notice thereof. The failure to give such notice shall not affect any Notifying Party’s ability to seek reimbursement unless, and only to the extent that, such failure has a detrimental effect on the Indemnifying Party’s ability to defend successfully the claim. The Indemnifying Party shall be entitled to contest and defend such claim, provided that the Indemnifying Party: (i) has a reasonable basis for concluding that such defense may be successful; and (ii) diligently contests and defends such claim.
(c) Notice of the intention so to contest and defend shall be given by the Indemnifying Party to the Notifying Party within fifteen (15) business days after the Notifying Party’s notice of such claim. The Indemnifying Party shall use reputable attorneys of its choosing to conduct such contest and defense. The Notifying Party shall be entitled at any time, at its own cost and expense (which expense shall not constitute a Loss for which the Notifying Party can be indemnified under Section 7.028.02), to participate in such contest and defense and to be represented by attorneys of its own choosing. The Notifying Party shall give the Indemnifying Party notice that it intends to participate in such contest and defense.
(d) If the Notifying Party elects to participate in such defense, the Notifying Party shall cooperate with the Indemnifying Party in the conduct of the defense. Whether or not the Notifying Party elects to participate in such defense, neither the Notifying Party nor the Indemnifying Party may concede, settle or compromise any claim without notifying the other Party and without the Indemnifying Party’s consent if the settling party is the Notifying Party, which consent shall not be unreasonably withheld.
(e) Notwithstanding any provision in this Agreement to the contrary, if: (i) a claim from a third party seeks relief in the form of a material obligation of the Notifying Party other than an obligation to pay monetary damages; (ii) the subject matter of a claim relates to the ongoing business of the Notifying Party, which claim, if decided against the Notifying Party, would adversely effect the ongoing business (including, without limitation, requiring any material change in the business practices of the Notifying Party) of the Notifying Party; or (iii) the Notifying Party would not be fully indemnified under Section 7.02 8.02 or released with respect to such claim, then, in each such case, the Notifying Party shall be entitled to contest and defend such claim, the expense of which shall constitute a Loss for which the Notifying Party can be indemnified under Section 7.02 8.02 (and the Indemnifying Party may participate); provided, however, that any settlement or compromise shall require the consent of the Indemnifying Party, which consent shall not be unreasonably withheld, and, if the Notifying Party does not contest and defend such claim, the Indemnifying Party shall then have the right to contest and defend (but not settle) such third party claim. *** Material has been omitted pursuant to a request for confidential treatment and filed separately with the SEC.
(f) Any dispute between the Parties about the applicability of any Party’s indemnification rights or obligations under Section 7.02 8.02 or the method of asserting claims under this Section 7.03 8.03 shall be resolved in accordance with the dispute resolution provisions set forth in Article VIIIIX.
Appears in 1 contract
Method of Asserting Third-Party Claims. (a) As used All Claims for indemnification by an Indemnified Party hereunder arising out of a Claim of a Third Party shall be asserted and resolved as set forth in this AgreementSection 8.4. In the event that any written Claim or demand for which Purchaser or Sellers, “Notifying Party” refers to any Party who claims entitlement to indemnification under Section 7.02 for losses resulting from a third-party claim. The as the case may be (an “Indemnifying Party” refers to the Party obligated to indemnify the Notifying Party under Section 7.02.
(b) In the event any Notifying Party is made a defendant in or party ”), may be liable to any claim instituted Indemnified Party hereunder is asserted against or sought to be collected from any Indemnified Party by any a third party for which the Notifying Party may be entitled to indemnification under Section 7.02party, the Notifying such Indemnified Party shall give promptly following such Indemnified Party’s receipt of such Claim or demand, notify in writing the Indemnifying Party prompt notice thereof. The failure to give of the nature of such notice shall not affect any Notifying Party’s ability to seek reimbursement unless, Claim or demand and only the amount or the estimated amount thereof to the extent that, such failure has a detrimental effect on the Indemnifying Party’s ability to defend successfully the claim. The Indemnifying Party shall be entitled to contest and defend such claim, provided that the Indemnifying Party: (i) has a reasonable basis for concluding that such defense may be successful; and (ii) diligently contests and defends such claim.
(c) Notice of the intention so to contest and defend shall be given by the Indemnifying Party to the Notifying Party within fifteen (15) business days after the Notifying Party’s notice of such claim. The Indemnifying Party shall use reputable attorneys of its choosing to conduct such contest and defense. The Notifying Party shall be entitled at any time, at its own cost and expense then feasible (which expense shall not constitute a Loss for which the Notifying Party can be indemnified under Section 7.02), to participate in such contest and defense and to be represented by attorneys of its own choosing. The Notifying Party shall give the Indemnifying Party notice that it intends to participate in such contest and defense.
(d) If the Notifying Party elects to participate in such defense, the Notifying Party shall cooperate with the Indemnifying Party in the conduct of the defense. Whether or not the Notifying Party elects to participate in such defense, neither the Notifying Party nor the Indemnifying Party may concede, settle or compromise any claim without notifying the other Party and without the Indemnifying Party’s consent if the settling party is the Notifying Party, which consent estimate shall not be unreasonably withheld.
(e) Notwithstanding any provision in this Agreement to the contrary, if: (i) a claim from a third party seeks relief in the form of a material obligation conclusive of the Notifying Party other than an obligation to pay monetary damages; final amount of such Claim or demand) (ii) the subject matter of a claim relates to the ongoing business of the Notifying Party, which claim, if decided against the Notifying Party, would adversely effect the ongoing business (including, without limitation, requiring any material change in the business practices of the Notifying Party) of the Notifying Party; or (iii) the Notifying Party would not be fully indemnified under Section 7.02 or released with respect to such claim, then, in each such case, the Notifying Party shall be entitled to contest and defend such claim, the expense of which shall constitute a Loss for which the Notifying Party can be indemnified under Section 7.02 (and the Indemnifying Party may participate“Claim Notice”); provided, however, that the failure of an Indemnified Party to promptly notify the Indemnifying Party will not relieve the Indemnifying Party from any settlement liability for indemnification pursuant to this Agreement or otherwise, unless the failure materially prejudices the rights or obligations of the Indemnifying Party. The Indemnifying Party will have thirty (30) days following the date of receipt of the Claim Notice to notify the Indemnified Party in writing of any objection that it has to the validity or amount of the Indemnified Loss. The failure of the Indemnifying Party to object within such 30-day period shall be deemed an acceptance of liability hereunder for the Indemnified Loss. Any timely objection to an Indemnified Loss that cannot be resolved by the Parties shall be determined by a court or arbitrator of competent jurisdiction. The Indemnifying Party shall have thirty (30) days after the provision of the Claim Notice (the “Notice Period”), to notify the Indemnified Party whether or not it desires to defend the Indemnified Party against such Claim or demand and shall during the Notice Period and thereafter be provided by the Indemnified Party with such information relating to the Claim or demand with counsel reasonably satisfactory to the Indemnified Party as the Indemnifying Party shall request. All costs and expenses incurred by the Indemnifying Party in defending such Claim or demand shall be borne by the Indemnifying Party. Except as hereinafter provided, in the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against such Claim or demand, the Indemnifying Party shall have the sole power to direct and control such defense. If the Indemnifying Party so elects to assume the defense of such Claim, the Indemnifying Party shall not be liable to the Indemnified Party for any legal expenses subsequently incurred by the Indemnified Party. If any Indemnified Party desires to participate in, but not control, any such defense it may do so at its sole cost and expense. The Indemnified Party shall not settle, compromise shall require or discharge a Claim or demand for which it is indemnified by an Indemnifying Party or admit to any liability with respect to such Claim or demand without the prior written consent of the Indemnifying Party, in its sole and absolute discretion. The Indemnifying Party shall not, without the written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any such Claim or demand on a basis (i) which would result in any admission or imposition of culpability or liability by or on the Indemnified Party and/or the imposition of a consent shall not be unreasonably withheldorder, and, if an injunction or decree which would restrict the Notifying future activity or conduct of the Indemnified Party or any Subsidiary or other Affiliate thereof or (ii) does not contest provide a full release to the Indemnified Party. To the extent the Indemnifying Party shall assume the defense of any third party Claim or demand, the Indemnified Party will provide the Indemnifying Party and its counsel access to all relevant business records and other documents, and shall use commercially reasonable efforts to assist and cooperate, and to cause the employees and counsel of the Indemnified Party to assist and cooperate, in defense of such Claim. If the Indemnifying Party elects not to defend the Indemnified Party or does not timely assume the defense thereof, the Indemnified Party shall have the right and the obligation to vigorously defend the Claim or demand, at the sole expense of the Indemnifying Party, by appropriate proceedings and shall have the sole power to direct and control such claimdefense. In any event, the Indemnifying Party shall then have the right to contest and defend (but not settle) such participate in the defense or settlement of any third party claimClaim or demand for which the Indemnifying Party may be liable hereunder at its own expense.
(f) Any dispute between the Parties about the applicability of any Party’s indemnification rights or obligations under Section 7.02 or the method of asserting claims under this Section 7.03 shall be resolved in accordance with the dispute resolution provisions set forth in Article VIII.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Lennar Corp /New/)
Method of Asserting Third-Party Claims. (a) As used in this Agreement, “Notifying Party” refers to any Party who claims entitlement to indemnification under Section 7.02 8.02 for losses resulting from a third-party claim. The “Indemnifying Party” refers to the Party obligated to indemnify the Notifying Party under Section 7.028.02.
(b) In the event any Notifying Party is made a defendant in or party to any claim instituted by any third party for which the Notifying Party may be entitled to indemnification under Section 7.028.02, the Notifying Party shall give the Indemnifying Party prompt notice thereof. The failure to give such notice shall not affect any Notifying Party’s ability to seek reimbursement unless, and only to the extent that, such failure has a detrimental effect on the Indemnifying Party’s ability to defend successfully the claim. The Indemnifying Party shall be entitled to contest and defend such claim, provided that the Indemnifying Party: (i) has a reasonable basis for concluding that such defense may be successful; and (ii) diligently contests and defends such claim.
(c) Notice of the intention so to contest and defend shall be given by the Indemnifying Party to the Notifying Party within fifteen (15) business days after the Notifying Party’s notice of such claim. The Indemnifying Party shall use reputable attorneys of its choosing to conduct such contest and defense. The Notifying Party shall be entitled at any time, at its own cost and expense (which expense shall not constitute a Loss for which the Notifying Party can be indemnified under Section 7.028.02), to participate in such contest and defense and to be represented by attorneys of its own choosing. The Notifying Party shall give the Indemnifying Party notice that it intends to participate in such contest and defense.
(d) If the Notifying Party elects to participate in such defense, the Notifying Party shall cooperate with the Indemnifying Party in the conduct of the defense. Whether or not the Notifying Party elects to participate in such defense, neither the Notifying Party nor the Indemnifying Party may concede, settle or compromise any claim without notifying the other Party and without the Indemnifying Party’s consent if the settling party is the Notifying Party, which consent shall not be unreasonably withheld.
(e) Notwithstanding any provision in this Agreement to the contrary, if: (i) a claim from a third party seeks relief in the form of a material obligation of the Notifying Party other than an obligation to pay monetary damages; (ii) the subject matter of a claim relates to the ongoing business of the Notifying Party, which claim, if decided against the Notifying Party, would adversely effect the ongoing business (including, without limitation, requiring any material change in the business practices of the Notifying Party) of the Notifying Party; or (iii) the Notifying Party would not be fully indemnified under Section 7.02 8.02 or released with respect to such claim, then, in each such case, the Notifying Party shall be entitled to contest and defend such claim, the expense of which shall constitute a Loss for which the Notifying Party can be indemnified under Section 7.02 8.02 (and the Indemnifying Party may participate); provided, however, that any settlement or compromise shall require the consent of the Indemnifying Party, which consent shall not be unreasonably withheld, and, if the Notifying Party does not contest and defend such claim, the Indemnifying Party shall then have the right to contest and defend (but not settle) such third party claim.
(f) Any dispute between the Parties about the applicability of any Party’s indemnification rights or obligations under Section 7.02 8.02 or the method of asserting claims under this Section 7.03 8.03 shall be resolved in accordance with the dispute resolution provisions set forth in Article VIIIIX.
Appears in 1 contract
Method of Asserting Third-Party Claims. (a) As used in this Agreement, “Notifying Party” refers to any Party who claims entitlement to indemnification under Section 7.02 for losses resulting from a third-party claim. The “Indemnifying Party” refers to Promptly after the Party obligated to indemnify the Notifying Party under Section 7.02.
(b) In the event any Notifying Party is made a defendant in or party to any claim instituted assertion by any third party for which the Notifying Party of any claim or demand against any Person that may be entitled to indemnification under Section 7.02this Article VII with respect to such claim (the "Indemnified Party"), the Notifying Indemnified Party shall give promptly notify the party from whom indemnification may be sought (the "Indemnifying Party prompt notice thereof. The failure to give Party"), specifying the nature of such notice shall not affect any Notifying Party’s ability to seek reimbursement unless, claim and only the amount or the estimated amount thereof to the extent that, such failure has a detrimental effect on the Indemnifying Party’s ability to defend successfully the claim. The Indemnifying Party then feasibly ascertainable (which estimate shall not be entitled to contest and defend such claim, provided that the Indemnifying Party: (i) has a reasonable basis for concluding that such defense may be successful; and (ii) diligently contests and defends such claim.
(c) Notice conclusive of the intention so to contest and defend shall be given by the Indemnifying Party to the Notifying Party within fifteen (15) business days after the Notifying Party’s notice final amount of such claim) (the "Claim Notice"). The Indemnifying Party shall use reputable attorneys Within thirty (30) days after receipt of its choosing to conduct such contest and defense. The Notifying Party shall be entitled at any time, at its own cost and expense a Claim Notice (which expense shall not constitute a Loss for which the Notifying Party can be indemnified under Section 7.02"Notice Period"), to participate in such contest and defense and to be represented by attorneys of its own choosing. The Notifying Party shall give the Indemnifying Party notice that it intends to participate in such contest and defense.
(d) If the Notifying Party elects to participate in such defense, the Notifying Party shall cooperate with the Indemnifying Party in the conduct of the defense. Whether or not the Notifying Party elects to participate in such defense, neither the Notifying Party nor the Indemnifying Party may concedeassume the defense of such claim; provided, settle or compromise any claim without notifying however, that (a) the other Indemnifying Party shall retain counsel reasonably acceptable to the Indemnified Party; and (b) the Indemnifying Party shall not, without the Indemnifying Party’s prior written consent if of the settling party is the Notifying Party, Indemnified Party (which consent shall not be unreasonably withheld.
(e) Notwithstanding ), enter into any provision in this Agreement settlement of a claim, consent to the contrary, if: (i) entry of any judgment with respect to a claim from or cease to defend a third party seeks relief in the form of a material obligation of the Notifying Party other than an obligation to pay monetary damages; (ii) the subject matter of a claim relates to the ongoing business of the Notifying Party, which claim, if decided pursuant to or as a result of such settlement, consent or cessation, injunctive or other equitable relief shall be imposed against the Notifying Party, would adversely effect Indemnified Party or if such settlement does not expressly and unconditionally release the ongoing business (including, without limitation, requiring any material change in the business practices of the Notifying Party) of the Notifying Party; or (iii) the Notifying Indemnified Party would not be fully indemnified under Section 7.02 or released from all Liabilities with respect to such claim, then, in each such case, the Notifying Party shall be entitled to contest and defend such claim, the expense of which shall constitute a Loss for which the Notifying Party can be indemnified under Section 7.02 (and the Indemnifying with prejudice. The Indemnified Party may participate)participate in the defense of such claim with co-counsel of its choice; provided, however, that any settlement the fees and expenses of the Indemnified Party's counsel shall be paid by the Indemnified Party unless (i) the Indemnifying Party has agreed in writing to pay such fees and expenses; (ii) the Indemnifying Party has failed to assume the defense and employ counsel as provided herein; or compromise (iii) a claim shall require have been brought or asserted against the consent Indemnifying Party as well as the Indemnified Party, and the Indemnified Party shall have been advised in writing by outside counsel that there may be one or more factual or legal defenses available to it that are in conflict with those available to the Indemnifying Party, in which case such co-counsel shall be at the expense of the Indemnifying Party; provided, which consent however, that the Indemnifying Party shall not be unreasonably withheld, and, if required to pay the Notifying fees and expenses of more than one separate lead counsel (and any appropriate local or specialized counsel) for all Indemnified Parties. If the Indemnifying Party does not contest and defend assume the defense of such claim, the Indemnifying Indemnified Party shall then have may defend against the right to contest and defend (but not settle) such third party claimsame in any manner that it reasonably deems appropriate.
(f) Any dispute between the Parties about the applicability of any Party’s indemnification rights or obligations under Section 7.02 or the method of asserting claims under this Section 7.03 shall be resolved in accordance with the dispute resolution provisions set forth in Article VIII.
Appears in 1 contract
Method of Asserting Third-Party Claims. (a) As used in this Agreement, “Notifying Party” refers to any Party who claims entitlement to indemnification under Section 7.02 for losses resulting from a third-party claim. The “Indemnifying Party” refers to the Party obligated to indemnify the Notifying Party under Section 7.02.
(b) In the event any Notifying Party is made a defendant in or party to any claim instituted by any third party for which the Notifying Party may be entitled to indemnification under Section 7.02, the Notifying Party shall give the Indemnifying Party prompt notice thereof. The failure to give such notice shall not affect any Notifying Party’s ability to seek reimbursement unless, and only to the extent that, such failure has a detrimental effect on the Indemnifying Party’s ability to defend successfully the claim. The Indemnifying Party shall be entitled to contest and defend such claim, provided that the Indemnifying Party: (i) has a reasonable basis for concluding that such defense may be successful; and (ii) diligently contests and defends such claim.
(c) Notice of the intention so to contest and defend shall be given by the Indemnifying Party to the Notifying Party within fifteen (15) business days after the Notifying Party’s notice of such claim. The Indemnifying Party shall use reputable attorneys of its choosing to conduct such contest and defense. The Notifying Party shall be entitled at any time, at its own cost and expense (which expense shall not constitute a Loss for which the Notifying Party can be indemnified under Section 7.02), to participate in such contest and defense and to be represented by attorneys of its own choosing. The Notifying Party shall give the Indemnifying Party notice that it intends to participate in such contest and defense.
(d) If the Notifying Party elects to participate in such defense, the Notifying Party shall cooperate with the Indemnifying Party in the conduct of the defense. Whether or not the Notifying Party elects to participate in such defense, neither the Notifying Party nor the Indemnifying Party may concede, settle or compromise any claim without notifying the other Party and without the Indemnifying Party’s consent if the settling party is the Notifying Party, which consent shall not be unreasonably withheld.
(e) Notwithstanding any provision in this Agreement to the contrary, if: (i) a claim from a third party seeks relief in the form of a material obligation of the Notifying Party other than an obligation to pay monetary damages; (ii) the subject matter of a claim relates to the ongoing business of the Notifying Party, which claim, if decided against the Notifying Party, would adversely effect the ongoing business (including, without limitation, requiring any material change in the business practices of the Notifying Party) of the Notifying Party; or (iii) the Notifying Party would not be fully indemnified under Section 7.02 or released with respect to such claim, then, in each such case, the Notifying Party shall be entitled to contest and defend CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSION. such claim, the expense of which shall constitute a Loss for which the Notifying Party can be indemnified under Section 7.02 (and the Indemnifying Party may participate); provided, however, that any settlement or compromise shall require the consent of the Indemnifying Party, which consent shall not be unreasonably withheld, and, if the Notifying Party does not contest and defend such claim, the Indemnifying Party shall then have the right to contest and defend (but not settle) such third party claim.
(f) Any dispute between the Parties about the applicability of any Party’s indemnification rights or obligations under Section 7.02 or the method of asserting claims under this Section 7.03 shall be resolved in accordance with the dispute resolution provisions set forth in Article VIII.
Appears in 1 contract
