Common use of Notice; Defense Clause in Contracts

Notice; Defense. Upon discovery of any breach or claim hereunder or upon receipt of any notice of any claim or suit subject to indemnification under Section 19.2.1 or 19.2.2 above, the party seeking indemnification (“Indemnified Party”) shall promptly give notice thereof (and in no event later than thirty days after receipt of actual notice thereof) to the party or parties from whom indemnification is sought (“Indemnifying Party”) at the notice address pursuant to Article 20 stating in reasonable detail the representation, warranty or other claims with respect to which indemnity is demanded, the facts or alleged facts giving rise thereto, and the amount of liability or asserted liability with respect to which indemnity is sought, and in the case of a claim asserted against the party seeking indemnity, the Indemnified Party shall thereafter tender to the Indemnifying Party the defense of such claims at the sole cost and expense of the Indemnifying Party. Despite such a tender of defense, the party seeking indemnification shall in any case have a right to participate in the defense of any such tendered claim or suit; provided that such participation shall be at such party’s sole cost and expense after the Indemnifying Party has accepted such tender of defense, and that the Indemnifying Party shall have control of the defense. In the event that the Indemnifying Party does not promptly and affirmatively accept such tender of defense of any claim or suit, then the Indemnifying Party shall thereafter additionally become liable for all costs incurred by the party seeking indemnification (including reasonable attorneys’ fees) in enforcing such indemnification claim and/or defending against such claim or suit which is subject to indemnification. No party which is entitled to indemnification under Section 19.2.1 or 19.2.2 shall settle or compromise any such third party claim without the prior written consent of the party from which it seeks or may seek indemnification, which consent shall not be unreasonably withheld. The Indemnifying Party shall not settle the claim or suit without the written consent of the Indemnified Party, which shall not be unreasonably withheld; provided, however, that the Indemnified Party shall not be required to give its consent unless the third-party claimant delivers to the Indemnified Party an unconditional release of all liability with respect to the claim or legal proceeding. Any party seeking indemnification under Section 19.2.1 or 19.2.2 shall take all reasonable actions in the defense of third party claims for which indemnification is sought. If notice is not given to the Indemnifying Party as specified, or if any claim or suit be compromised or settled in any manner without the prior written consent (which consent shall not be unreasonably withheld) of the Indemnifying Party, then no liability shall be imposed upon the Indemnifying Party hereunder with respect to such claim.

Notice; Defense. Upon discovery of any breach or claim hereunder or upon receipt of any notice of any claim or suit subject to indemnification under Section 19.2.1 or 19.2.2 6.1 above, the party seeking indemnification Purchaser Indemnified Party or the Company Indemnified Party (each, an “Indemnified Party”) shall promptly give notice thereof (and in no event later than thirty 20 days after receipt of actual any notice thereof) to the indemnifying party or parties from whom indemnification is sought (“Indemnifying Party”) at the notice address pursuant to Article 20 stating in reasonable detail the representationrepresentations, warranty or other claims claim with respect to which indemnity is demanded, the facts or alleged facts giving rise thereto, and the amount of liability or asserted liability with respect to which indemnity is soughtsought and, and in the case of a claim asserted against the party seeking indemnity, the Indemnified Party shall thereafter tender to the Indemnifying Party indemnifying party the defense of such claims claim at the sole cost and expense of the Indemnifying Partyindemnifying party. Despite such a tender of defense, the party seeking indemnification Indemnified Party shall in any case have a right to participate in the defense of any such tendered claim or suit; provided , provided, that such participation shall be at such party’s sole cost and expense after the Indemnifying Party indemnifying party has accepted such tender of defense, and that the Indemnifying Party shall have control of the defense. In the event that the Indemnifying Party indemnifying party does not promptly and affirmatively accept within thirty (30) days thereafter such tender of defense of any claim or suitsuit and thereafter use commercially reasonable efforts to pursue such defense, then the Indemnifying Party indemnifying party shall thereafter additionally become liable for all the reasonable costs incurred by the party seeking indemnification Indemnified Party (including reasonable attorneys’ feesand paralegals’ fees and costs) in enforcing such indemnification claim and/or defending against such claim or suit which is subject to indemnification. No party which is entitled to indemnification under Section 19.2.1 or 19.2.2 shall settle or compromise any such third party claim without the prior written consent of the party from which it seeks or may seek indemnification, which consent shall not be unreasonably withheld. The Indemnifying Party shall not settle the claim or suit without the written consent of the Indemnified Party, which shall not be unreasonably withheld; provided, however, that the Indemnified Party shall not be required to give its consent unless the third-party claimant delivers to the Indemnified Party an unconditional release of all liability with respect to the claim or legal proceeding. Any party seeking indemnification under Section 19.2.1 or 19.2.2 shall take all reasonable actions in the defense of third party claims for which indemnification is sought. If notice is not given to the Indemnifying Party as specified, or if any defend such claim or suit be compromised or settled in any manner without the prior written consent (which consent shall not be unreasonably withheld) of the Indemnifying Party, then no liability shall be imposed upon the Indemnifying Party hereunder with respect to such claimgood faith.

Notice; Defense. Upon discovery of any breach or claim hereunder or upon receipt of any notice of any claim or suit subject to indemnification under Section 19.2.1 Sections 8.1 or 19.2.2 above8.2, the party Party seeking indemnification (“"Indemnified Party”") shall promptly give notice thereof (and in no event later than thirty (30) days after receipt of actual any notice thereof) to the party Party (such notice shall be given to the Contributor Representative if addressed to Contributor and/or the Members and to NETE's Chief Financial Officer if addressed to NETE or parties Holdco) from whom indemnification is sought (“"Indemnifying Party”") at the notice address pursuant to Article 20 stating in reasonable detail the representationrepresentations, warranty or other claims claim with respect to which indemnity is demanded, the facts or alleged facts giving rise thereto, and the amount of liability Losses or asserted liability Losses with respect to which indemnity is soughtsought and, and in the case of a claim asserted against the party seeking indemnity, the Indemnified Party shall thereafter tender to Indemnifying Party (Contributor Representative shall act on behalf of the Indemnifying Party of such Indemnifying Party is Contributor and/or the Members) the defense of such claims claim at the sole cost and expense of the Indemnifying Party; provided however, that the failure of Indemnified Party to give such notice shall only affect the rights of the Indemnifying Party under the provisions of this Section 8.3 to the extent that the Indemnifying Party are actually prejudiced by such failure. If the Indemnifying Party has undertaken the defense of a claim and (i) if there is a reasonable expectation that (a) a claim may materially and adversely affect Indemnified Party other than as a result of money damages or other money payments or (b) Indemnified Party may have legal defenses available to it that are different from or additional to the defenses available to any of the Indemnifying Party, or (ii) if the Indemnifying Party shall not have employed counsel reasonably satisfactory to Indemnified Party, Indemnified Party shall nevertheless have the right, at the Indemnifying Party's cost and expense, to defend such claim. Notwithstanding anything to the contrary contained herein, the Indemnifying Party shall only have the right to assume the defense of such claim if the Indemnifying Party post a bond or gives other reasonable assurance that the amount of the applicable claim will be paid. Despite such a tender of defense, the party seeking indemnification Indemnified Party shall in any case have a right to participate in the defense of any such tendered claim or suit; provided that such participation shall be at such party’s Indemnified Party's sole cost and expense after the Indemnifying Party has satisfactorily accepted such tender of defense, and that the Indemnifying Party shall have control of the defense. In the event that the Indemnifying Party does not promptly and affirmatively accept within thirty (30) days thereafter such tender of defense of any claim or suitsuit and thereafter vigorously pursue such defense, then the Indemnifying Party shall thereafter additionally become liable for all costs incurred by the party seeking indemnification Indemnified Party (including reasonable attorneys’ fees' and paralegals' fees and costs) in enforcing such indemnification claim and/or defending against such claim or suit which is subject to indemnification; provided that Indemnified Party shall defend such claim or suit in good faith. No party Party which is entitled to indemnification under Section 19.2.1 or 19.2.2 Sections 8.1 and 8.2 shall settle or compromise any such third party claim without the prior written consent of the party Party or Parties from which whom it seeks or may seek indemnification, which consent shall not be unreasonably withheld. The Indemnifying Party shall may not compromise or settle the any claim or suit without the written consent of the Indemnified Party, which shall not be unreasonably withheld; providedas decided in its sole discretion, however, that the if such compromise or settlement involves any monetary or non-monetary obligation on Indemnified Party shall or does not be required to give its consent unless the third-party claimant delivers to the completely and unequivocally release Indemnified Party an unconditional release of from all liability with respect to the Losses resulting from such claim or legal proceeding. Any party seeking indemnification under Section 19.2.1 or 19.2.2 shall take all reasonable actions in the defense of third party claims for which indemnification is sought. If notice is not given to the Indemnifying Party as specified, or if any claim or suit be compromised or settled in any manner without the prior written consent (which consent shall not be unreasonably withheld) of the Indemnifying Party, then no liability shall be imposed upon the Indemnifying Party hereunder with respect to such claimsuit.

Notice; Defense. Upon discovery For the purposes of administering the indemnification provisions of this Agreement, the following procedures shall apply from and after the Closing Date: (a) Each Indemnified Party shall notify the Indemnitor in writing within 30 days following the receipt of notice of the commencement of any breach action or claim hereunder proceeding or upon receipt within 60 days of any notice (i) the assertion of any claim against such Indemnified Party or suit subject (ii) the discovery by such Indemnified Party of any Loss, giving rise to indemnification under Section 19.2.1 or 19.2.2 above, the party seeking indemnification (“Indemnified Party”) shall promptly give notice thereof (and in no event later than thirty days after receipt of actual notice thereof) to the party or parties from whom indemnification is sought (“Indemnifying Party”) at the notice address indemnity pursuant to Article 20 stating in reasonable detail the representationthis Agreement (any 30 or 60 day notification requirement shall begin to run, warranty or other claims with respect to which indemnity is demanded, the facts or alleged facts giving rise thereto, and the amount of liability or asserted liability with respect to which indemnity is sought, and in the case of a claim asserted which is amended so as to give rise to a right to indemnification hereunder, from the first day such claim is amended to include any claim which relates to a right of indemnification hereunder) and shall indicate in such notification whether such Indemnified Party is requesting indemnification with respect to such indemnification event. The failure to give notice as required by this Subsection 8.5.1 (a) in a timely fashion shall not result in a waiver of any right to indemnification hereunder except to the extent that the Indemnitor's ability to defend against the party seeking indemnityevent with respect to which indemnification is sought is materially adversely affected by the failure of the Indemnified Party to give notice in a timely fashion as required by this Subsection 8.5.1(a); (b) After notification is given as aforesaid, the Indemnitor shall be entitled (but not obligated, except with respect to Assumed Liabilities, as to which Buyer shall be so obligated and the Excluded Liabilities, as to which Seller shall be so obligated) to assume the defense or settlement of any such action or proceeding, or to participate in any negotiations or proceedings to settle or otherwise eliminate any claim; provided however that in the event the Indemnitor assumes any such defense or settlement or any such negotiations, it shall actively pursue such defense, settlement or negotiations in good faith. If the Indemnitor fails to elect in writing within 10 business days after the notification referred to above to assume the defense, the Indemnified Party may engage counsel to defend, settle or otherwise dispose of such action or proceeding; (c) In cases where the Indemnitor has assumed the defense or settlement with respect to an indemnification event, the Indemnitor shall be entitled to assume the defense or settlement thereof with counsel of its own choosing, which counsel shall be reasonably satisfactory to the Indemnified Party, provided that the Indemnitor's right to settle, compromise, decline to appeal, or otherwise dispose of any such action, proceeding or claim shall be subject to the provisions of Subsection 8.5.2; (d) In any case in which the Indemnitor assumes the defense or settlement thereof, the Indemnified Party shall thereafter tender be entitled to participate at its own cost in any such action or proceeding or in any negotiations or proceedings to settle or otherwise eliminate any claim for which indemnification is being sought and shall have the Indemnifying right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (i) the employment of such counsel shall have been authorized in writing by the Indemnitor in connection with the defense of such claims at suit, action, claim or proceeding, (ii) the sole cost and expense Indemnitor shall not have employed counsel (reasonably satisfactory to the Indemnified Party) to take charge of the Indemnifying Party. Despite such a tender of defense, the party seeking indemnification shall in any case have a right to participate in the defense of any such tendered action, suit, claim or proceeding within 10 business days after notice of commencement of the action, suit; provided that , claim or proceeding, or (iii) such participation shall be at such party’s sole cost and expense after the Indemnifying Party has accepted such tender of defense, and that the Indemnifying Indemnified Party shall have control reasonably concluded that there may be defenses available to it which are different from or additional to those available to the Indemnitor which, if the Indemnitor and the Indemnified Party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defensedefenses available to such Indemnified Party. If any of the events specified in clauses (ii) or (iii) of the preceding sentence shall have occurred or shall otherwise be applicable, then the reasonable fees and expenses of one counsel or firm of counsel selected by the Indemnified Party shall be borne by the Indemnitor and, in the event of clause (iii), such counsel shall be reasonably acceptable to the Indemnitor. In no event shall an Indemnitor be liable to any Indemnified Party for the cost of employing or using in- house legal counsel regardless of whether such Indemnitor has, or has not, assumed the defense or settlement of such action, proceeding or claim; (e) In the event that indemnification is requested, the Indemnifying Party does not promptly relevant Indemnitor, its representatives and affirmatively accept such tender of defense of any claim or suitagents shall have access to the premises, then the Indemnifying Party shall thereafter additionally become liable for all costs incurred by the party seeking indemnification (including reasonable attorneys’ fees) in enforcing such indemnification claim and/or defending against such claim or suit which is subject to indemnification. No party which is entitled to indemnification under Section 19.2.1 or 19.2.2 shall settle or compromise any such third party claim without the prior written consent of the party from which it seeks or may seek indemnification, which consent shall not be unreasonably withheld. The Indemnifying Party shall not settle the claim or suit without the written consent books and records of the Indemnified PartyParty or parties seeking such indemnification to the extent reasonably necessary to assist it in defending or settling any action, which proceeding or claim; provided however that such access shall be conducted in such manner as not be to interfere unreasonably withheld; provided, however, that with the operation of the business of the Indemnified Party or parties and shall only take place in the presence of a representative of the Indemnified Party or parties unless otherwise so agreed and the Indemnified Party shall not be required to give its consent unless the third-party claimant delivers to the Indemnified Party an unconditional release of all liability disclose any information with respect to the claim itself or legal proceeding. Any party seeking indemnification under Section 19.2.1 any of its affiliates or 19.2.2 former affiliates, and shall take all reasonable actions not be required to participate in the defense of third party claims for which indemnification is sought. If notice is not given to the Indemnifying Party as specified, or if any claim to be indemnified hereunder (except as otherwise expressly set forth herein), unless such disclosure or suit participation is otherwise required or reasonably necessary in the defense of any claim to be compromised or settled in indemnified hereunder; and (f) Any amount which is required to be paid by an Indemnitor to any manner without party, including any reimbursement to which the prior written consent (which consent shall not be unreasonably withheld) of the Indemnifying PartyIndemnified Party is entitled, then no liability shall be imposed upon the Indemnifying Party hereunder with respect to paid by such claimIndemnitor promptly.

Notice; Defense. Upon discovery Promptly after receipt by an indemnified party under this Section 1.9 of notice of the commencement of any breach action (including any governmental action), such indemnified party will, if a claim for indemnification or claim hereunder or upon receipt of contribution in respect thereof is to be made by such indemnified party against any indemnifying party under this Section 1.9, deliver to the indemnifying party a written notice of any claim or suit subject to indemnification under Section 19.2.1 or 19.2.2 abovethe commencement of such action and, the indemnifying party seeking indemnification (“Indemnified Party”) shall promptly give notice thereof (have the right and in no event later than thirty days after receipt of actual notice thereof) obligation to the party or parties from whom indemnification is sought (“Indemnifying Party”) at the notice address pursuant to Article 20 stating in reasonable detail the representation, warranty or other claims with respect to which indemnity is demanded, the facts or alleged facts giving rise thereto, and the amount of liability or asserted liability with respect to which indemnity is sought, and in the case of a claim asserted against the party seeking indemnity, the Indemnified Party shall thereafter tender to the Indemnifying Party control the defense of such claims at the sole cost and expense of the Indemnifying Party. Despite such a tender of defense, the party seeking indemnification shall in any case have a right to participate in the defense of any such tendered claim or suit; provided that such participation shall be at such party’s sole cost and expense after the Indemnifying Party has accepted such tender of defense, and that the Indemnifying Party shall have control of the defense. In the event that the Indemnifying Party does not promptly and affirmatively accept such tender of defense of any claim or suit, then the Indemnifying Party shall thereafter additionally become liable for all costs incurred by the party seeking indemnification (including reasonable attorneys’ fees) in enforcing such indemnification claim and/or defending against such claim or suit which is subject to indemnification. No party which is entitled to indemnification under Section 19.2.1 or 19.2.2 shall settle or compromise any such third party claim without the prior written consent of the party from which it seeks or may seek indemnification, which consent shall not be unreasonably withheld. The Indemnifying Party shall not settle the claim or suit without the written consent of the Indemnified Party, which shall not be unreasonably withheldaction; provided, however, that that: (i) the Indemnified Party indemnified party or parties shall not be required have the right to give its consent unless the third-party claimant delivers participate at its/their own expense in and, to the Indemnified Party an unconditional release of all liability extent agreed in writing with respect the indemnifying party and any other indemnifying party similarly noticed, to the claim or legal proceeding. Any party seeking indemnification under Section 19.2.1 or 19.2.2 shall take all reasonable actions in assume, the defense of third such action with counsel mutually satisfactory to the parties; and (ii) an indemnified party claims shall have the right to retain its own counsel, with the fees and expenses of such counsel to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential conflict of interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure of an indemnified party to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action for which indemnification is sought. If notice is not given , if materially prejudicial to the Indemnifying Party as specified, or if any claim or suit be compromised or settled in any manner without the prior written consent (which consent shall not be unreasonably withheld) ability of the Indemnifying Partyindemnifying party to defend such action, then no shall relieve such indemnifying party of any liability shall be imposed upon to the Indemnifying Party hereunder with respect indemnified party under this Section 1.9, but the omission so to such claimdeliver written notice to the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than under this Section 1.9.

Notice; Defense. Upon discovery Each party hereto entitled to indemnification under this Section 14 (each, an "Indemnified Party") hereby agrees to give the applicable party or parties obligated to indemnify it under this Section 14 (each, an "Indemnifying Party") written notice of any breach event or claim hereunder or upon receipt assertion of which the Indemnified Party obtains knowledge concerning any notice Damage and as to which the Indemnified Party may request indemnification hereunder. The Indemnified Party shall cooperate with the Indemnifying Party in determining the validity of any claim or suit subject to indemnification under Section 19.2.1 or 19.2.2 above, the party seeking indemnification (“Indemnified Party”) shall promptly give notice thereof (assertion requiring indemnity hereunder and in no event later than thirty days after receipt of actual notice thereof) to the party or defending against third parties from whom indemnification is sought (“Indemnifying Party”) at the notice address pursuant to Article 20 stating in reasonable detail the representation, warranty or other claims with respect to which indemnity is demanded, the facts or alleged facts giving rise thereto, and the amount of liability or asserted liability with respect to which indemnity is sought, and in the case of a claim asserted against the party seeking indemnity, the Indemnified Party shall thereafter tender to the Indemnifying Party the same. The defense of such claims at litigation shall be within the sole cost and expense control of the Indemnifying Party, or, as the case may be, any Persons providing indemnity and defense to such Indemnifying Party; provided, however, that an Indemnifying Party's choice of counsel shall be reasonably satisfactory to the Indemnified Party. Despite such a tender of defense, the party seeking indemnification shall in any case have a right to The Indemnified Party may participate in the defense of any such tendered claim or suit; provided that assertion requiring indemnity hereunder, and in such participation event, shall be at such party’s sole cost and expense after the cooperate fully in connection therewith. If an Indemnifying Party has accepted such tender fails to perform its obligations under this Section 14.2, then the Indemnified Party may directly assume the defense of defensethe claim or assertion at issue, and that the such Indemnifying Party shall have control of promptly reimburse the defense. In the event that the Indemnifying Indemnified Party does not promptly and affirmatively accept such tender of defense of any claim or suit, then the Indemnifying Party shall thereafter additionally become liable for all costs and expenses (including, without limitation, attorneys' fees and expenses), incurred in connection therewith. The Indemnified Party's failure to give timely notice or to provide copies of documents or to furnish relevant data in connection with any such third-party claim shall not constitute a defense (in part or in whole) to any claim for indemnification by the party seeking indemnification (including reasonable attorneys’ fees) in enforcing such indemnification claim and/or defending against such claim or suit which is subject it. Each of CAI, CAHS, CHCM and BCBSNJ hereby agrees not to indemnification. No party which is entitled to indemnification under Section 19.2.1 or 19.2.2 shall settle or compromise any such third third-party suit, claim or proceeding without the prior written consent of the party from which it seeks or may seek indemnificationapplicable Indemnified Party, which consent shall not be unreasonably withheld. The Indemnifying Party shall not settle the claim or suit without the written consent of the Indemnified Partywithheld as to suits, which shall not be unreasonably withheld; provided, however, that the Indemnified Party shall not be required to give its consent unless the third-party claimant delivers to the Indemnified Party an unconditional release of all liability with respect to the claim or legal proceeding. Any party seeking indemnification under Section 19.2.1 or 19.2.2 shall take all reasonable actions in the defense of third party claims for which indemnification is sought. If notice is not given to the Indemnifying Party as specified, or if any claim or suit be compromised or settled in any manner without the prior written consent (which consent shall not be unreasonably withheld) of the Indemnifying Party, then no liability shall be imposed upon the Indemnifying Party hereunder with respect to such claimand proceedings at law.