Notice, Etc. A party required to make an indemnification ----------- payment pursuant to this Agreement ("Indemnifying Party") shall have no liability with respect to Third Party Claims or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation under this Agreement, unless the party entitled to receive such indemnification payment ("Indemnified Party") gives notice to the Indemnifying Party in accordance with terms hereof, as soon as practical following the time at which the Indemnified Party discovered such Claim (except to the extent the Indemnifying Party is not prejudiced by any delay in the delivery of such notice) and in any event prior to the applicable date specified in Section 9.1 or 9.2, specifying (i) the ------------------ covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount of any Claim the Indemnified Party may have against the Indemnifying Party by reason thereof under this Agreement, and (iii) whether or not the Claim is a Third Party Claim. All Claims by any Indemnified Party under this Article IX shall be asserted and resolved as follows: ---------- (a) Third-Party Claims. ------------------ (i) In the event that an Indemnified Party becomes aware of a Third Party Claim for which an Indemnifying Party would be liable to an Indemnified Party hereunder, the Indemnified Party shall with reasonable promptness notify in writing the Indemnifying Party of such Claim, identifying the basis for such Claim or demand, and the amount or the estimated amount thereof to the extent then determinable (which estimate shall not be conclusive of the final amount of such Claim and demand; the "Claim Notice"); provided, however, that any failure to give such Claim Notice will not be deemed a waiver of any rights of the Indemnified Party except to the extent the rights of the Indemnifying Party are actually prejudiced by such failure. The Indemnifying Party will notify the Indemnified Party as soon as practicable whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section ------- 9.3 (a) the Indemnifying Party shall retain counsel (who shall be reasonably ------ acceptable to the Indemnified Party) to represent the Indemnified Party and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel with regard thereto; provided, however, that any Indemnified Party is hereby authorized, prior to the date on which it receives written notice from the Indemnifying Party designating such counsel, to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party. After the Indemnifying Party shall retain such counsel, the Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (x) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (y) the named parties of any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate 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. The Indemnifying Party shall not, in connection with any proceedings or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand which the Indemnifying Party defends 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). A Claim or demand may not be settled by either party without the prior written consent of the other party (which consent will not be unreasonably withheld or delayed) unless, as part of such settlement, the Indemnified Party shall receive a full and unconditional release reasonably satisfactory to the Indemnifying Party. Notwithstanding the foregoing, the Indemnifying Party shall not settle any claim without the prior written consent of the Indemnified Party if such Claim is not exclusively for monetary Damages. (ii) If the Indemnifying Party fails to notify the Indemnified Party that the Indemnifying Party desires to defend the Third Party Claim pursuant to the preceding paragraph 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 vigorously and diligently 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 (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying -------- ------- Party will, at the sole cost and expense of the Indemnifying Party, 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 paragraph, if the Indemnifying Party has notified the Indemnified Party 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 Party the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this paragraph or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in connection with such litigation. The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this paragraph, and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Olympic Cascade Financial Corp), Securities Purchase Agreement (Olympic Cascade Financial Corp)
Notice, Etc. A party Party required to make an indemnification ----------- payment pursuant to this Agreement ("Indemnifying Party") shall have no liability with respect to Third Party Claims or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation under this Agreement, Agreement unless the party Party entitled to receive such indemnification payment ("Indemnified Party") gives notice to the Indemnifying Party in accordance with terms hereof, as soon as practical following the time at which the Indemnified Party discovered such Claim (except to the extent the Indemnifying Party is not prejudiced by any delay in the delivery of such notice) and in any event prior to the applicable date specified in Section 9.1 or 9.2, specifying (i) the ------------------ covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount of any Claim the Indemnified Party may have against the Indemnifying Party by reason thereof under this Agreement, and (iii) whether or not the Claim is a Third Party Claim. All Claims by any With respect to Third Party Claims, an Indemnified Party under this Article IX shall be asserted and resolved as follows: ----------
(a) Third-Party Claims. ------------------
(i) In shall give the event that an Indemnified Indemnifying Party becomes aware prompt notice of a any Third Party Claim, (ii) prior to taking any action with respect to such Third Party Claim, shall consult with the Indemnifying Party as to the procedure to be followed in defending, settling, or compromising the Third Party Claim, (iii) shall not consent to any settlement or compromise of the Third Party Claim for which an Indemnifying Party would be liable to an Indemnified Party hereunder, without the Indemnified Party shall with reasonable promptness notify in writing the Indemnifying Party of such Claim, identifying the basis for such Claim or demand, and the amount or the estimated amount thereof to the extent then determinable (which estimate shall not be conclusive of the final amount of such Claim and demand; the "Claim Notice"); provided, however, that any failure to give such Claim Notice will not be deemed a waiver of any rights of the Indemnified Party except to the extent the rights written consent of the Indemnifying Party are actually prejudiced by such failure. The Indemnifying Party will notify the Indemnified Party as soon as practicable whether (which consent shall not be unreasonably withheld or delayed), and (iv) shall permit the Indemnifying Party, if it so elects, to assume the exclusive defense of such Third Party desiresClaim (including, except as provided in the penultimate sentence of this Section, the compromise or settlement thereof) at its sole own cost and expense, to defend the Indemnified Party against such Third Party Claim. If the Indemnifying Party notifies shall elect to assume the Indemnified Party that the Indemnifying Party desires to defend the Indemnified Party with respect to the exclusive defense of any Third Party Claim pursuant to this Section ------- 9.3
(a) the Indemnifying Party Agreement, it shall retain counsel (who shall be reasonably ------ acceptable to the Indemnified Party) to represent notify the Indemnified Party in writing of such election, and the Indemnifying Party shall pay not be liable hereunder for any fees or expenses of the reasonable fees and disbursements of Indemnified Party’s counsel relating to such counsel with regard thereto; provided, however, that any Indemnified Third Party is hereby authorized, prior to Claim after the date on which it receives written notice from the Indemnifying Party designating such counsel, of delivery to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party. After the Indemnifying Party shall retain such counsel, the Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense notice of such Indemnified Party unless (x) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (y) the named parties of any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate 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 conductelection. The Indemnifying Party shall not, in connection with will not compromise or settle any proceedings or related proceedings in such Third Party Claim without the same jurisdiction, be liable for the fees and expenses written consent of more than one such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand which the Indemnifying Party defends 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). A Claim or demand may not be settled by either party without the prior written consent of the other party (which consent will shall not be unreasonably withheld or delayed) unlessif the relief provided is other than monetary damages or such relief would have a material adverse effect on the Indemnified Party. Notwithstanding the foregoing, as part of such settlementif the Indemnifying Party elects to assume the defense with respect to any Third Party Claim, the Indemnified Indemnifying Party shall receive have the right to compromise or settle for solely monetary damages such Third Party Claim, provided such settlement will not result in or have a full and unconditional release reasonably satisfactory to Material Adverse Effect on the Indemnifying Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not settle which defends any claim without the prior written consent of the Indemnified Party if such Claim is not exclusively for monetary Damages.
(ii) If the Indemnifying Party fails to notify the Indemnified Party that the Indemnifying Party desires to defend the Third Party Claim pursuant shall, to the preceding paragraph then the Indemnified Party will have the right to defend, at the sole cost and expense extent required by any insurance policies of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently 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 (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying -------- ------- Party will, at the sole cost and expense of the Indemnifying Party, cooperate with the Indemnified Party and its counsel in contesting share or give control thereof to 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 paragraph, if the Indemnifying Party has notified the Indemnified Party that the Indemnifying Party disputes its liability hereunder to the Indemnified Party insurer 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 paragraph or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in connection with such litigation. The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this paragraph, and the Indemnifying Party will bear its own costs and expenses with respect to such participationClaim.
Appears in 2 contracts
Samples: Sale and Purchase Agreement (China Unistone Acquisition CORP), Sale and Purchase Agreement (China Unistone Acquisition CORP)
Notice, Etc. A If any party required (the "Indemnified Party") receives notice of any third-party claim or commencement of any third-party action or proceeding (an "Asserted Liability") with respect to make which any other party (an indemnification ----------- payment pursuant to this Agreement ("Indemnifying Party") shall have no liability with respect is obligated to Third Party Claims provide indemnification pursuant to Section 10.2(a) (Indemnification of Superholdings ) or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation under this Agreement, unless Section 10.2(b) (Indemnification of the party entitled to receive such indemnification payment ("Indemnified Party") gives notice to the Indemnifying Party in accordance with terms hereof, as soon as practical following the time at which the Indemnified Party discovered such Claim (except to the extent the Indemnifying Party is not prejudiced by any delay in the delivery of such notice) and in any event prior to the applicable date specified in Section 9.1 or 9.2, specifying (i) the ------------------ covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount of any Claim the Indemnified Party may have against the Indemnifying Party by reason thereof under this Agreement, and (iii) whether or not the Claim is a Third Party Claim. All Claims by any Indemnified Party under this Article IX shall be asserted and resolved as follows: ----------
(a) Third-Party Claims. ------------------
(i) In the event that an Indemnified Party becomes aware of a Third Party Claim for which an Indemnifying Party would be liable to an Indemnified Party hereunderMembers), the Indemnified Party shall with reasonable promptness promptly give all Indemnifying Parties notice thereof. The Indemnified Party's failure so to notify in writing the an Indemnifying Party of such Claimshall not cause the Indemnified Party to lose its right to indemnification under this Article 10, identifying the basis for such Claim or demand, and the amount or the estimated amount thereof except to the extent then determinable that such failure materially prejudices the Indemnifying Party's ability to defend against an Asserted Liability that such Indemnifying Party has the right to defend against hereunder (and except as otherwise set forth in this Article 10). Such notice shall describe the Asserted Liability in reasonable detail, and if practicable shall indicate the amount (which estimate shall not may be conclusive estimated) of the final amount Losses that have been or may be asserted by the Indemnified Party. Each of such Claim and demand; the "Claim Notice"); provided, however, that any failure to give such Claim Notice will not be deemed a waiver of any rights Indemnifying Parties may defend against an Asserted Liability on behalf of the Indemnified Party except to the extent the rights of the Indemnifying Party are actually prejudiced by such failure. The Indemnifying Party will notify the Indemnified Party as soon as practicable whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section ------- 9.3
(a) the Indemnifying Party shall retain utilizing counsel (who shall be reasonably ------ acceptable to the Indemnified Party, unless (i) the Indemnified Party reasonably objects to the assumption of such defense on the grounds that counsel for such Indemnifying Party cannot represent both the Indemnified Party and the such Indemnifying Party shall pay the reasonable fees and disbursements of because such counsel with regard thereto; provided, however, that any Indemnified Party is hereby authorized, prior to the date on which it receives written notice from the Indemnifying Party designating such counsel, to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party. After the Indemnifying Party shall retain such counsel, the Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (x) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (y) the named parties of any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate because reasonably likely to result in a conflict of interest 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. The Indemnifying Party shall not, in connection with any proceedings or related proceedings in the same jurisdiction, because there may be liable for the fees and expenses of more than one such firm for the Indemnified Party (except defenses available to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand which the Indemnifying Party defends 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). A Claim or demand may not be settled by either party without the prior written consent of the other party (which consent will not be unreasonably withheld or delayed) unless, as part of such settlement, the Indemnified Party shall receive a full and unconditional release reasonably satisfactory to the Indemnifying Party. Notwithstanding the foregoing, the Indemnifying Party shall not settle any claim without the prior written consent of the Indemnified Party if such Claim is not exclusively for monetary Damages.
(ii) If the Indemnifying Party fails to notify the Indemnified Party that the Indemnifying Party desires are not available to defend the Third Party Claim pursuant to the preceding paragraph then the Indemnified Party will have the right to defend, at the sole cost and expense of the such Indemnifying Party, the Third (ii) such Indemnifying Party Claim is not capable (by all appropriate proceedingsreason of insufficient financial capacity, which proceedings will be vigorously and diligently prosecuted by the Indemnified Party to bankruptcy, receivership, liquidation, managerial deadlock, managerial neglect or similar events) of maintaining 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 reasonable defense of such defense and proceedingsaction or proceeding, including or (except as provided in iii) the immediately preceding sentence) any settlement thereof; provided, however, that if requested by action or proceeding seeks injunctive or other equitable relief against the Indemnified Party, the Indemnifying -------- ------- Party will, at the sole cost and expense of the Indemnifying Party, 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 paragraph, if the Indemnifying Party has notified the Indemnified Party 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 Party the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this paragraph or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in connection with such litigation. The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this paragraph, and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Alamosa PCS Holdings Inc), Agreement and Plan of Reorganization (Alamosa PCS Holdings Inc)
Notice, Etc. A party Party required to make an indemnification ----------- payment pursuant to this Agreement ("“Indemnifying Party"”) shall have no liability with respect to Third Party Claims or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation under this Agreement, Agreement unless the party Party entitled to receive such indemnification payment ("“Indemnified Party"”) gives notice to the Indemnifying Party in accordance with terms hereof, as soon as practical following the time at which the Indemnified Party discovered such Claim (except to the extent the Indemnifying Party is not prejudiced by any delay in the delivery of such notice) and in any event prior to the applicable date specified in Section 9.1 or 9.2, specifying (i) the ------------------ covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount (or estimate, if the magnitude of the Claim cannot be precisely determined at that time) of any Claim the Indemnified Party may have against the Indemnifying Party by reason thereof under this Agreement, and (iii) whether or not the Claim is a Third Party Claim. All Claims by any With respect to Third Party Claims, an Indemnified Party under this Article IX shall be asserted and resolved as follows: ----------
(a) Third-Party Claims. ------------------
(i) In shall give the event that an Indemnified Indemnifying Party becomes aware prompt notice of a any Third Party Claim, (ii) prior to taking any action with respect to such Third Party Claim, shall consult with the Indemnifying Party as to the procedure to be followed in defending, settling, or compromising the Third Party Claim, (iii) shall not consent to any settlement or compromise of the Third Party Claim for which an Indemnifying Party would be liable to an Indemnified Party hereunder, without the Indemnified Party shall with reasonable promptness notify in writing the Indemnifying Party of such Claim, identifying the basis for such Claim or demand, and the amount or the estimated amount thereof to the extent then determinable (which estimate shall not be conclusive of the final amount of such Claim and demand; the "Claim Notice"); provided, however, that any failure to give such Claim Notice will not be deemed a waiver of any rights of the Indemnified Party except to the extent the rights written consent of the Indemnifying Party are actually prejudiced by such failure. The Indemnifying Party will notify the Indemnified Party as soon as practicable whether (which consent shall not be unreasonably withheld or delayed), and (iv) shall permit the Indemnifying Party, if it so elects, to assume the exclusive defense of such Third Party desiresClaim (including, except as provided in the penultimate sentence of this Section, the compromise or settlement thereof) at its sole own cost and expense, to defend the Indemnified Party against such Third Party Claim. If the Indemnifying Party notifies shall elect to assume the Indemnified Party that the Indemnifying Party desires to defend the Indemnified Party with respect to the exclusive defense of any Third Party Claim pursuant to this Section ------- 9.3
(a) the Indemnifying Party Agreement, it shall retain counsel (who shall be reasonably ------ acceptable to the Indemnified Party) to represent notify the Indemnified Party in writing of such election, and the Indemnifying Party shall pay not be liable hereunder for any fees or expenses of the reasonable fees and disbursements of Indemnified Party’s counsel relating to such counsel with regard thereto; provided, however, that any Indemnified Third Party is hereby authorized, prior to Claim after the date on which it receives written notice from the Indemnifying Party designating such counsel, of delivery to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party. After the Indemnifying Party shall retain such counsel, the Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense notice of such Indemnified Party unless (x) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (y) the named parties of any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate 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 conductelection. The Indemnifying Party shall not, in connection with will not compromise or settle any proceedings or related proceedings in such Third Party Claim without the same jurisdiction, be liable for the fees and expenses written consent of more than one such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand which the Indemnifying Party defends 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). A Claim or demand may not be settled by either party without the prior written consent of the other party (which consent will shall not be unreasonably withheld or delayed) unlessif the relief provided is other than monetary damages or such relief would have a Material Adverse Effect on the Indemnified Party. Notwithstanding the foregoing, as part of such settlementif the Indemnifying Party elects to assume the defense with respect to any Third Party Claim, the Indemnified Indemnifying Party shall receive have the right to compromise or settle for solely monetary damages such Third Party Claim, provided such settlement will not result in or have a full and unconditional release reasonably satisfactory to Material Adverse Effect on the Indemnifying Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not settle which defends any claim without the prior written consent of the Indemnified Party if such Claim is not exclusively for monetary Damages.
(ii) If the Indemnifying Party fails to notify the Indemnified Party that the Indemnifying Party desires to defend the Third Party Claim pursuant shall, to the preceding paragraph then the Indemnified Party will have the right to defend, at the sole cost and expense extent required by any insurance policies of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently 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 (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying -------- ------- Party will, at the sole cost and expense of the Indemnifying Party, cooperate with the Indemnified Party and its counsel in contesting share or give control thereof to 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 paragraph, if the Indemnifying Party has notified the Indemnified Party that the Indemnifying Party disputes its liability hereunder to the Indemnified Party insurer 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 paragraph or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in connection with such litigation. The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this paragraph, and the Indemnifying Party will bear its own costs and expenses with respect to such participationClaim.
Appears in 2 contracts
Samples: Share Purchase Agreement (ChinaGrowth South Acquisition CORP), Share Purchase Agreement (ChinaGrowth North Acquisition CORP)
Notice, Etc. (a) A party Party required to make an indemnification ----------- payment pursuant to this Agreement ("“Indemnifying Party"”) shall have no liability with respect to Third Party Claims or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation under this Agreement, Agreement unless the party Party entitled to receive such indemnification payment ("“Indemnified Party"”) gives notice to the Indemnifying Party in accordance with terms hereof, as soon as practical following the time at which the Indemnified Party discovered such Claim (except to the extent the Indemnifying Party is not prejudiced by any delay in the delivery of such notice) and in any event prior to the applicable date specified in Section 9.1 or 9.2, specifying (i) the ------------------ covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount (or estimate, if the magnitude of the Claim cannot be precisely determined at that time) of any Claim the Indemnified Party may have against the Indemnifying Party by reason thereof under this Agreement, and (iii) whether or not the Claim is a Third Party Claim. All Claims by any .
(b) With respect to Third Party Claims, an Indemnified Party under this Article IX shall be asserted and resolved as follows: ----------
(a) Third-Party Claims. ------------------
(i) In shall give the event that an Indemnified Indemnifying Party becomes aware prompt notice of a any Third Party Claim, (ii) prior to taking any action with respect to such Third Party Claim, shall consult with the Indemnifying Party as to the procedure to be followed in defending, settling, or compromising the Third Party Claim, (iii) shall not consent to any settlement or compromise of the Third Party Claim for which an Indemnifying Party would be liable to an Indemnified Party hereunder, without the Indemnified Party shall with reasonable promptness notify in writing the Indemnifying Party of such Claim, identifying the basis for such Claim or demand, and the amount or the estimated amount thereof to the extent then determinable (which estimate shall not be conclusive of the final amount of such Claim and demand; the "Claim Notice"); provided, however, that any failure to give such Claim Notice will not be deemed a waiver of any rights of the Indemnified Party except to the extent the rights written consent of the Indemnifying Party are actually prejudiced by such failure. The Indemnifying Party will notify the Indemnified Party as soon as practicable whether (which consent shall not be unreasonably withheld or delayed), and (iv) shall permit the Indemnifying Party, if it so elects, to assume the exclusive defense of such Third Party desiresClaim (including, except as provided in Section 9.4(d), the compromise or settlement thereof) at its sole own cost and expense, to defend the Indemnified Party against such Third Party Claim. .
(c) If the Indemnifying Party notifies shall elect to assume the Indemnified Party that the Indemnifying Party desires to defend the Indemnified Party with respect to the exclusive defense of any Third Party Claim pursuant to this Section ------- 9.3
(a) the Indemnifying Party Agreement, it shall retain counsel (who shall be reasonably ------ acceptable to the Indemnified Party) to represent notify the Indemnified Party in writing of such election, and the Indemnifying Party shall pay not be liable hereunder for any fees or expenses of the reasonable fees and disbursements of Indemnified Party’s counsel relating to such counsel with regard thereto; provided, however, that any Indemnified Third Party is hereby authorized, prior to Claim after the date on which it receives written notice from the Indemnifying Party designating such counsel, of delivery to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party. After the Indemnifying Party shall retain such counsel, the Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense notice of such Indemnified Party unless election.
(xd) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (y) the named parties of any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate 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. The Indemnifying Party shall not, in connection with will not compromise or settle any proceedings or related proceedings in such Third Party Claim without the same jurisdiction, be liable for the fees and expenses written consent of more than one such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand which the Indemnifying Party defends 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). A Claim or demand may not be settled by either party without the prior written consent of the other party (which consent will shall not be unreasonably withheld or delayed) unless, as part of if the relief provided is other than monetary damages or such settlement, relief would have a Material Adverse Effect on the Indemnified Party shall receive a full and unconditional release reasonably satisfactory to the Indemnifying Party. Notwithstanding the foregoing, if the Indemnifying Party elects to assume the defense with respect to any Third Party Claim, the Indemnifying Party shall not settle any claim without the prior written consent of the Indemnified Party if such Claim is not exclusively for monetary Damages.
(ii) If the Indemnifying Party fails to notify the Indemnified Party that the Indemnifying Party desires to defend the Third Party Claim pursuant to the preceding paragraph 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 vigorously and diligently prosecuted by the Indemnified Party to a final conclusion compromise 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 settle for solely monetary damages such defense and proceedings, including (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying -------- ------- Party will, at the sole cost and expense of the Indemnifying Party, 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 paragraph, if the Indemnifying Party has notified the Indemnified Party that the Indemnifying Party disputes its liability hereunder provided such settlement would not reasonably be expected 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 have a Material Adverse Effect on the Indemnified Party's defense pursuant to this paragraph or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in connection with such litigation. The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this paragraph, and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
Appears in 2 contracts
Samples: Share Purchase Agreement (Pingtan Marine Enterprise Ltd.), Share Purchase Agreement (Pingtan Marine Enterprise Ltd.)
Notice, Etc. A (a) To the extent that undertakings of any Indemnifying Party set forth in this Article VI may be unenforceable, such Indemnifying Party shall contribute the maximum amount that it is permitted to contribute under Applicable Law to the payment and satisfaction of all Losses incurred by the Indemnified Party.
(b) An Indemnified Party shall give Xxxxxx or WEST, as the applicable indemnifying party required to make an indemnification ----------- payment pursuant to this Agreement ("the “Indemnifying Party"”) shall have no liability with respect notice of any matter which an Indemnified Party has determined has given or could give rise to Third Party Claims or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation a right of indemnification under this Agreement, unless within 60 days of such determination, stating the party entitled amount of the Loss, if known, and method of computation thereof, and containing a reference to receive the provisions of this Agreement in respect of which such right of indemnification payment ("Indemnified Party") gives is claimed or arises; provided, however, that the failure to provide such notice to shall not release the Indemnifying Party in accordance with terms hereof, as soon as practical following the time at which the Indemnified Party discovered such Claim (from any of its obligations under this Article VI except to the extent the Indemnifying Party is not materially prejudiced by any delay in the delivery of such notice) failure and in any event prior to the applicable date specified in Section 9.1 or 9.2, specifying (i) the ------------------ covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount of any Claim the Indemnified Party may have against shall not relieve the Indemnifying Party by reason thereof from any other obligation or Liability that it may have to any Indemnified Party otherwise than under this Agreement, Article VI. The obligations and (iii) whether or not Liabilities of the Claim is a Third Party Claim. All Claims by any Indemnified Indemnifying Party under this Article IX VI with respect to Losses arising from claims of any third party which are subject to the indemnification provided for in this Article VI #4843-4322-6596v6 (“Third Party Claims”) shall be asserted governed by and resolved as followscontingent upon the following additional terms and conditions: ----------
(a) Third-Party Claims. ------------------
(i) In the event that if an Indemnified Party becomes aware shall receive notice of a any Third Party Claim for which an Indemnifying Party would be liable to an Indemnified Party hereunderClaim, the Indemnified Party shall with reasonable promptness notify in writing give the Indemnifying Party notice of such Claim, identifying the basis for such Third Party Claim or demand, and the amount or the estimated amount thereof to the extent then determinable (which estimate shall not be conclusive within 30 days of the final amount receipt by the Indemnified Party of such Claim and demand; the "Claim Notice")notice; provided, however, that any the failure to give provide such Claim Notice will notice shall not be deemed a waiver release the Indemnifying Party from any of any rights of the Indemnified Party its obligations under this Article VI except to the extent the rights of Indemnifying Party is materially prejudiced by such failure and shall not relieve the Indemnifying Party are actually prejudiced by such failure. The Indemnifying Party will notify the from any other obligation or Liability that it may have to any Indemnified Party as soon as practicable whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Third Party Claimotherwise than under this Article VI. If the Indemnifying Party notifies acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that the Indemnifying Party desires to defend the Indemnified Party with respect to the may result from such Third Party Claim pursuant to this Section ------- 9.3
(a) Claim, then the Indemnifying Party shall retain be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel (who shall be reasonably ------ acceptable of its choice if it gives notice of its intention to do so to the Indemnified Party within five days of the receipt of such notice from the Indemnified Party) ; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party, in its sole and absolute discretion, for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall pay be entitled to retain its own counsel, in each jurisdiction for which the reasonable fees and disbursements of such counsel with regard thereto; provided, however, that any Indemnified Party determines counsel is hereby authorizedrequired, prior to the date on which it receives written notice from the Indemnifying Party designating such counsel, to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of . In the Indemnifying Party. After event the Indemnifying Party shall retain exercises the right to undertake any such counseldefense against any such Third Party Claim as provided above, the Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (x) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (y) the named parties of any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate 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. The Indemnifying Party shall not, in connection with any proceedings or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party in such defense and its counsel in contesting any claim or demand which the Indemnifying Party defends 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). A Claim or demand may not be settled by either party without the prior written consent of the other party (which consent will not be unreasonably withheld or delayed) unless, as part of such settlement, the Indemnified Party shall receive a full and unconditional release reasonably satisfactory make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by such Indemnifying Party. Notwithstanding Similarly, in the foregoingevent the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall not settle any claim cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at such Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Party if such Claim is not exclusively for monetary DamagesParty.
(ii) If the Indemnifying Party fails to notify the Indemnified Party that the Indemnifying Party desires to defend the Third Party Claim pursuant to the preceding paragraph 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 vigorously and diligently 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 (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying -------- ------- Party will, at the sole cost and expense of the Indemnifying Party, 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 paragraph, if the Indemnifying Party has notified the Indemnified Party 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 Party the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this paragraph or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in connection with such litigation. The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this paragraph, and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
Appears in 1 contract
Samples: Asset Purchase Agreement (Willis Lease Finance Corp)
Notice, Etc. A (a) To the extent that undertakings of any Indemnifying Party set forth in this Article VI may be unenforceable, such Indemnifying Party shall contribute the maximum amount that it is permitted to contribute under Applicable Law to the payment and satisfaction of all Losses incurred by the Indemnified Party.
(b) An Indemnified Party shall give Xxxxxx or WEST, as the applicable indemnifying party required to make an indemnification ----------- payment pursuant to this Agreement ("the “Indemnifying Party"”) shall have no liability with respect notice of any matter which an Indemnified Party has determined has given or could give rise to Third Party Claims or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation a right of indemnification under this Agreement, unless within 60 days of such determination, stating the party entitled amount of the Loss, if known, and method of computation thereof, and containing a reference to receive the provisions of this Agreement in respect of which such right of indemnification payment ("Indemnified Party") gives is claimed or arises; provided, however, that the failure to provide such notice to shall not release the Indemnifying Party in accordance with terms hereof, as soon as practical following the time at which the Indemnified Party discovered such Claim (from any of its obligations under this Article VI except to the extent the Indemnifying Party is not materially prejudiced by any delay in the delivery of such notice) failure and in any event prior to the applicable date specified in Section 9.1 or 9.2, specifying (i) the ------------------ covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount of any Claim the Indemnified Party may have against shall not relieve the Indemnifying Party by reason thereof from any other obligation or Liability that it may have to any Indemnified Party otherwise than under this Agreement, Article VI. The obligations and (iii) whether or not Liabilities of the Claim is a Third Party Claim. All Claims by any Indemnified Indemnifying Party under this Article IX VI with respect to Losses arising from claims of any third party which are subject to the indemnification provided for in this Article VI (“Third Party Claims”) shall be asserted governed by and resolved as followscontingent upon the following additional terms and conditions: ----------
(a) Third-Party Claims. ------------------
(i) In the event that if an Indemnified Party becomes aware shall receive notice of a any Third Party Claim for which an Indemnifying Party would be liable to an Indemnified Party hereunderClaim, the Indemnified Party shall with reasonable promptness notify in writing give the Indemnifying Party notice of such Claim, identifying Third Party Claim within [**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. Confidential Treatment Requested: Information for which confidential treatment has been requested is omitted and is noted with asterisks. An unredacted version of this document has been filed separately with the basis for such Claim or demand, Securities and the amount or the estimated amount thereof to the extent then determinable (which estimate shall not be conclusive Exchange Commission. 30 days of the final amount receipt by the Indemnified Party of such Claim and demand; the "Claim Notice")notice; provided, however, that any the failure to give provide such Claim Notice will notice shall not be deemed a waiver release the Indemnifying Party from any of any rights of the Indemnified Party its obligations under this Article VI except to the extent the rights of Indemnifying Party is materially prejudiced by such failure and shall not relieve the Indemnifying Party are actually prejudiced by such failure. The Indemnifying Party will notify the from any other obligation or Liability that it may have to any Indemnified Party as soon as practicable whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Third Party Claimotherwise than under this Article VI. If the Indemnifying Party notifies acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that the Indemnifying Party desires to defend the Indemnified Party with respect to the may result from such Third Party Claim pursuant to this Section ------- 9.3
(a) Claim, then the Indemnifying Party shall retain be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel (who shall be reasonably ------ acceptable of its choice if it gives notice of its intention to do so to the Indemnified Party within five days of the receipt of such notice from the Indemnified Party) ; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party, in its sole and absolute discretion, for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall pay be entitled to retain its own counsel, in each jurisdiction for which the reasonable fees and disbursements of such counsel with regard thereto; provided, however, that any Indemnified Party determines counsel is hereby authorizedrequired, prior to the date on which it receives written notice from the Indemnifying Party designating such counsel, to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of . In the Indemnifying Party. After event the Indemnifying Party shall retain exercises the right to undertake any such counseldefense against any such Third Party Claim as provided above, the Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (x) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (y) the named parties of any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate 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. The Indemnifying Party shall not, in connection with any proceedings or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party in such defense and its counsel in contesting any claim or demand which the Indemnifying Party defends 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). A Claim or demand may not be settled by either party without the prior written consent of the other party (which consent will not be unreasonably withheld or delayed) unless, as part of such settlement, the Indemnified Party shall receive a full and unconditional release reasonably satisfactory make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by such Indemnifying Party. Notwithstanding Similarly, in the foregoingevent the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall not settle any claim cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at such Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Party if such Claim is not exclusively for monetary DamagesParty.
(ii) If the Indemnifying Party fails to notify the Indemnified Party that the Indemnifying Party desires to defend the Third Party Claim pursuant to the preceding paragraph 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 vigorously and diligently 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 (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying -------- ------- Party will, at the sole cost and expense of the Indemnifying Party, 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 paragraph, if the Indemnifying Party has notified the Indemnified Party 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 Party the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this paragraph or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in connection with such litigation. The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this paragraph, and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
Appears in 1 contract
Samples: Asset Purchase Agreement (Willis Lease Finance Corp)
Notice, Etc. A party required to make Seller Indemnified Party or an indemnification ----------- payment pursuant to this Agreement WEST Indemnified Party ("each, an “Indemnified Party”) shall give WEST or the Seller, respectively, (each, the applicable “Indemnifying Party"”) shall have no liability with respect notice of any matter which an Indemnified Party has determined has given or could give rise to Third Party Claims or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation a right of indemnification under this Agreement, unless within 60 days of such determination, stating the party entitled to receive such indemnification payment ("Indemnified Party") gives notice amount of the Loss, if known, and method of computation thereof, and containing a reference to the Indemnifying Party provisions of this Agreement in accordance with terms hereof, as soon as practical following the time at respect of which the Indemnified Party discovered such Claim (except to the extent the Indemnifying Party right of indemnification is not prejudiced by any delay in the delivery of such notice) and in any event prior to the applicable date specified in Section 9.1 claimed or 9.2, specifying (i) the ------------------ covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount of any Claim the Indemnified Party may have against the Indemnifying Party by reason thereof under this Agreement, and (iii) whether or not the Claim is a Third Party Claim. All Claims by any Indemnified Party under this Article IX shall be asserted and resolved as follows: ----------
(a) Third-Party Claims. ------------------
(i) In the event that an Indemnified Party becomes aware of a Third Party Claim for which an Indemnifying Party would be liable to an Indemnified Party hereunder, the Indemnified Party shall with reasonable promptness notify in writing the Indemnifying Party of such Claim, identifying the basis for such Claim or demand, and the amount or the estimated amount thereof to the extent then determinable (which estimate shall not be conclusive of the final amount of such Claim and demand; the "Claim Notice")arises; provided, however, that any the failure to give provide such Claim Notice will notice shall not be deemed a waiver release such Indemnifying Party from any of any rights of the Indemnified Party its obligations under this Article VI except to the extent the rights of the such Indemnifying Party are actually is materially prejudiced by such failurefailure and shall not relieve such Indemnifying Party from any other obligation or Liability that it may have to any Indemnified Party otherwise than under this Article VI. The obligations and Liabilities of any Indemnifying Party will notify under this Article VI with respect to Losses arising from claims of any third party which are subject to the indemnification provided for in this Article VI (“Third Party Claims”) shall be governed by and contingent upon the following additional terms and conditions: if an Indemnified Party shall receive notice of any Third Party Claim, the Indemnified Party as soon as practicable whether shall give the applicable Indemnifying Party desires, at its sole cost and expense, to defend notice of such Third Party Claim within 30 days of the receipt by the Indemnified Party of such notice; provided, however, that the failure to provide such notice shall not release such Indemnifying Party from any of its obligations under this Article VI except to the extent such Indemnifying Party is materially prejudiced by such failure and shall not relieve such Indemnifying Party from any other obligation or Liability that it may have to any Indemnified Party otherwise than under this Article VI. If any Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim. If the , then such Indemnifying Party notifies shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party that within five days of the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section ------- 9.3
(a) the Indemnifying Party shall retain counsel (who shall be reasonably ------ acceptable to receipt of such notice from the Indemnified Party) ; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party, in its sole and absolute discretion, for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall pay be entitled to retain its own counsel, in each jurisdiction for which the reasonable fees and disbursements of such counsel with regard thereto; provided, however, that any Indemnified Party determines counsel is hereby authorizedrequired, prior to the date on which it receives written notice from the Indemnifying Party designating such counsel, to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party, to file . In the event any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party. After the Indemnifying Party shall retain exercises the right to undertake any such counseldefense against any such Third Party Claim as provided above, the Indemnified Party shall have the right cooperate with such Indemnifying Party in such defense and make available to retain its own counselsuch Indemnifying Party, but the fees and expenses of such counsel shall be at the expense of Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by such Indemnified Party unless (x) Indemnifying Party. Similarly, in the Indemnifying Party and event the Indemnified Party shall have mutually agreed to is, directly or indirectly, conducting the retention of such counsel or (y) the named parties of defense against any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate 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. The Indemnifying Party shall not, in connection with any proceedings or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand which the Indemnifying Party defends 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). A Claim or demand may not be settled by either party without the prior written consent of the other party (which consent will not be unreasonably withheld or delayed) unless, as part of such settlement, the Indemnified Party shall receive a full and unconditional release reasonably satisfactory to the Indemnifying Party. Notwithstanding the foregoingClaim, the Indemnifying Party shall not settle any claim cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at such Indemnifying Party’s expense, all such witnesses, records, materials and information in such Indemnifying Party’s possession or under such Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Party if such Claim is not exclusively for monetary DamagesParty.
(ii) If the Indemnifying Party fails to notify the Indemnified Party that the Indemnifying Party desires to defend the Third Party Claim pursuant to the preceding paragraph 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 vigorously and diligently 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 (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying -------- ------- Party will, at the sole cost and expense of the Indemnifying Party, 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 paragraph, if the Indemnifying Party has notified the Indemnified Party 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 Party the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this paragraph or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in connection with such litigation. The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this paragraph, and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
Appears in 1 contract
Samples: Asset Transfer Agreement (Willis Lease Finance Corp)
Notice, Etc. A party required Each Indemnitee agrees to make an give the indemnifying Party prompt ------------ written notice of any Claim, for which such Indemnitee intends to assert a right to indemnification ----------- payment pursuant to this Agreement ("Indemnifying Party") shall have no liability with respect to Third Party Claims or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation under this Agreement, unless the party entitled to receive such indemnification payment ("Indemnified Party") gives notice to the Indemnifying Party in accordance with terms hereof, as soon as practical following the time at which the Indemnified Party discovered such Claim (except to the extent the Indemnifying Party is not prejudiced by any delay in the delivery of such notice) and in any event prior to the applicable date specified in Section 9.1 or 9.2, specifying (i) the ------------------ covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount of any Claim the Indemnified Party may have against the Indemnifying Party by reason thereof under this Agreement, and (iii) whether or not the Claim is a Third Party Claim. All Claims by any Indemnified Party under this Article IX shall be asserted and resolved as follows: ----------
(a) Third-Party Claims. ------------------
(i) In the event that an Indemnified Party becomes aware of a Third Party Claim for which an Indemnifying Party would be liable to an Indemnified Party hereunder, the Indemnified Party shall with reasonable promptness notify in writing the Indemnifying Party of such Claim, identifying the basis for such Claim or demand, and the amount or the estimated amount thereof to the extent then determinable (which estimate shall not be conclusive of the final amount of such Claim and demand; the "Claim Notice"); provided, however, that any failure to give such Claim Notice will notification shall not be deemed a waiver of any rights of affect the Indemnified Party Indemnitee's entitlement to indemnification hereunder except to the extent that the rights indemnifying Party shall have been prejudiced as a result of the Indemnifying Party are actually prejudiced by such failure. The Indemnifying indemnifying Party will notify shall have the Indemnified Party sole right (but not the obligation) to defend, settle or otherwise dispose of any Claim or which the Indemnitee intends to assert a right to otherwise dispose of any Claim for which the Indemnitee intends to assert a right to indemnification under this AGREEMENT as soon contemplated in the preceding sentence on such terms as practicable whether the Indemnifying Party desiresindemnifying Party, at in its sole cost discretion, shall deem appropriate if and expenseso long as the indemnifying Party has recognized in a written notice to the Indemnitee its obligation to indemnify the Indemnitee for any Losses relating to such Claim, and at the indemnifying party's option (subject to defend the Indemnified Party against limitations set forth below) shall be entitled to appoint lead counsel of such Third Party Claimdefense with a nationally recognized reputable counsel acceptable to the Indemnitee; provided, that the indemnifying party shall not have the right to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnitee, if the claim which the indemnifying party seeks to assume control (i) seeks non-monetary relief, (ii) involves criminal or quasi-criminal allegations, (iii) involves a claim to which the Indemnitee reasonably believes an adverse determination would be detrimental to or injure the Indemnitee's reputation or future business prospects, or (iv) involves a claim which, upon petition by the Indemnitee, the appropriate court rules that the indemnifying party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party notifies indemnifying party is permitted to assume and control the Indemnified Party that the Indemnifying Party desires defense and elects to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section ------- 9.3
(a) the Indemnifying Party shall retain counsel (who shall be reasonably ------ acceptable to the Indemnified Party) to represent the Indemnified Party and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel with regard thereto; provided, however, that any Indemnified Party is hereby authorized, prior to the date on which it receives written notice from the Indemnifying Party designating such counsel, to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party. After the Indemnifying Party shall retain such counseldo so, the Indemnified Party Indemnitee shall have the right to retain its own counselemploy counsel separate from counsel employed by the indemnifying party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnitee shall be at the expense of such Indemnified Party the Indemnitee unless (xi) the employment thereof has been specifically authorized by the indemnifying party in writing, or (ii) the indemnifying party has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the indemnifying party and the Indemnitee. If the Indemnifying Party and shall control the Indemnified Party shall have mutually agreed to the retention of such counsel or (y) the named parties defense of any such proceeding (including any impleaded parties) include both claim, the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate 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. The Indemnifying indemnifying Party shall not, in connection with any proceedings or related proceedings in obtain the same jurisdiction, be liable for the fees and expenses of more than one such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand which the Indemnifying Party defends 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). A Claim or demand may not be settled by either party without the prior written consent of the other party (which consent will not be unreasonably withheld or delayed) unless, as part of such settlement, the Indemnified Party shall receive a full and unconditional release reasonably satisfactory Indemnitee prior to the Indemnifying Party. Notwithstanding the foregoing, the Indemnifying Party shall not settle any claim without the prior written consent of the Indemnified Party if such Claim is not exclusively for monetary Damages.
(ii) If the Indemnifying Party fails to notify the Indemnified Party that the Indemnifying Party desires to defend the Third Party Claim pursuant to the preceding paragraph then the Indemnified Party will have the right ceasing to defend, at settling or otherwise disposing of any Claim if as a result thereof the sole cost and expense Indemnitee would become subject to injunctive or other equitable relief that could reasonably be expected to have a material adverse effect on the business of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently 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 (except as provided Indemnitee in the immediately preceding sentence) any settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying -------- ------- Party will, at the sole cost and expense of the Indemnifying Party, 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 paragraph, if the Indemnifying Party has notified the Indemnified Party 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 Party the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this paragraph or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in connection with such litigation. The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this paragraph, and the Indemnifying Party will bear its own costs and expenses with respect to such participationnonmonetary manner.
Appears in 1 contract
Samples: Research and License Agreement (Cambridge Antibody Technology Group PLC)
Notice, Etc. A (a) If any legal proceedings, claims or demands are instituted or asserted by any Person in respect of which any of the ITI Indemnified Parties may seek indemnification from any party required to make an indemnification ----------- payment hereto pursuant to this Agreement the provisions hereof (such legal proceedings, claims or demands being referred to individually as a "Indemnifying PartyClaim" and collectively as the "Claims"), the indemnified party (after receipt by it of written notice of the commencement or assertion of such Claim) shall promptly cause a written notice of such Claim to be made to the indemnifying party (but the failure to give such notice shall not relieve the indemnifying party of its indemnification obligation hereunder, except to the extent such failure materially prejudices the indemnifying party's ability to successfully defend the matter giving rise to the indemnification claim).
(b) Subject to the next sentence and Section 9.2(c) hereof, the indemnifying party shall have the right, at its option and expense, to assume the defense, settlement or other disposition (collectively "Defense") of any Claim, provided that within 10 days of receiving the notice with respect to such Claim pursuant to Section 9.2(a) hereof (or within such shorter period of time as an answer or other responsive motion may be required) (i) the indemnifying party, by notice delivered to the indemnified party, elects to assume such Defense and (ii) the indemnifying party acknowledges its obligation hereunder to indemnify the indemnified party with respect to such Claim (subject to any applicable deductibles provided for by Section 9.1(c) hereof). Notwithstanding the foregoing, the indemnifying party shall not have the right to assume the Defense of any Claim if representation of both the indemnified and indemnifying parties by the same counsel would be inappropriate due to actual or reasonably likely potential differing interests between them.
(c) If the indemnifying party has assumed the Defense of a Claim in accordance with Section 9.2(b ) hereof, then the following shall apply:
(i) the indemnified party shall have the right to participate and assist in the Defense of such Claim and to employ its own counsel in connection therewith;
(ii) the indemnifying party shall not be liable to the indemnified party for the fees or expenses of the indemnified party's counsel or other expenses incurred by the indemnified party in connection with participating in the Defense of such Claim, except that the indemnifying party shall be liable for (x) any such reasonable fees and expenses incurred prior to the time the indemnifying party assumed such Defense and (y) the reasonable out-of-pocket costs of investigation and preparation incurred by the indemnified party;
(iii) counsel used by the indemnifying party in connection with the Defense of such Claim shall be reasonably satisfactory to the indemnified party;
(iv) the indemnifying party shall have no liability with respect to Third Party Claims any compromise or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation under this Agreement, unless the party entitled to receive such indemnification payment ("Indemnified Party") gives notice to the Indemnifying Party in accordance with terms hereof, as soon as practical following the time at which the Indemnified Party discovered settlement of such Claim effected without its consent, which consent shall not be unreasonably withheld; and
(except to v) the extent the Indemnifying Party is indemnifying party shall not prejudiced by effect any delay in the delivery compromise or settlement of such noticeClaim without the consent of the indemnified party, which consent shall not be unreasonably withheld.
(d) and in any event prior If the indemnifying party does not assume the Defense of a Claim (whether because it elects not to or has no right to), then the applicable date specified in Section 9.1 or 9.2, specifying following shall apply:
(i) the ------------------ covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, indemnifying party shall have the nature and dollar amount of any Claim the Indemnified Party may have against the Indemnifying Party by reason thereof under this Agreement, and (iii) whether or not the Claim is a Third Party Claim. All Claims by any Indemnified Party under this Article IX shall be asserted and resolved as follows: ----------
(a) Third-Party Claims. ------------------
(i) In the event that an Indemnified Party becomes aware of a Third Party Claim for which an Indemnifying Party would be liable to an Indemnified Party hereunder, the Indemnified Party shall with reasonable promptness notify in writing the Indemnifying Party of such Claim, identifying the basis for such Claim or demand, and the amount or the estimated amount thereof to the extent then determinable (which estimate shall not be conclusive of the final amount of such Claim and demand; the "Claim Notice"); provided, however, that any failure to give such Claim Notice will not be deemed a waiver of any rights of the Indemnified Party except to the extent the rights of the Indemnifying Party are actually prejudiced by such failure. The Indemnifying Party will notify the Indemnified Party as soon as practicable whether the Indemnifying Party desiresright, at its sole cost and expense, to defend participate in the Indemnified Party against Defense of such Third Party Claim. If Claim and to employ its own counsel in connection therewith; and
(ii) the Indemnifying Party notifies the Indemnified Party that the Indemnifying Party desires to defend the Indemnified Party indemnifying party shall have no liability with respect to the Third Party any compromise or settlement of such Claim pursuant to this Section ------- 9.3effected without its consent, which shall not be unreasonably withheld.
(ae) the Indemnifying Party shall retain counsel (who shall be reasonably ------ acceptable The parties agree to cooperate to the Indemnified Party) to represent the Indemnified Party and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel with regard thereto; provided, however, that any Indemnified Party is hereby authorized, prior to the date on which it receives written notice from the Indemnifying Party designating such counsel, to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party. After the Indemnifying Party shall retain such counsel, the Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (x) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (y) the named parties of any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate 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. The Indemnifying Party shall not, fullest extent possible in connection with any proceedings or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand which the Indemnifying Party defends 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 respect of its Affiliates). A Claim or demand may not be settled by either party without the prior written consent of the other party (which consent will not be unreasonably withheld or delayed) unless, as part of such settlement, the Indemnified Party shall receive a full and unconditional release reasonably satisfactory to the Indemnifying Party. Notwithstanding the foregoing, the Indemnifying Party shall not settle any claim without the prior written consent of the Indemnified Party if such Claim indemnification is not exclusively for monetary Damagessought under this Agreement.
(ii) If the Indemnifying Party fails to notify the Indemnified Party that the Indemnifying Party desires to defend the Third Party Claim pursuant to the preceding paragraph 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 vigorously and diligently 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 (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying -------- ------- Party will, at the sole cost and expense of the Indemnifying Party, 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 paragraph, if the Indemnifying Party has notified the Indemnified Party 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 Party the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this paragraph or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in connection with such litigation. The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this paragraph, and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
Appears in 1 contract
Notice, Etc. A party required to make WEST Indemnified Party or a Xxxxxx Indemnified Party (each, an indemnification ----------- payment pursuant to this Agreement “Indemnified Party”) shall give WEST or Xxxxxx, respectively, ("each, the applicable “Indemnifying Party"”) shall have no liability with respect notice of any matter which an Indemnified Party has determined has given or could give rise to Third Party Claims or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation a right of indemnification under this Agreement, unless within 60 days of such determination, stating the party entitled to receive such indemnification payment ("Indemnified Party") gives notice amount of the Loss, if known, and method of computation thereof, and containing a reference to the Indemnifying Party provisions of this Agreement in accordance with terms hereof, as soon as practical following the time at respect of which the Indemnified Party discovered such Claim (except to the extent the Indemnifying Party right of indemnification is not prejudiced by any delay in the delivery of such notice) and in any event prior to the applicable date specified in Section 9.1 claimed or 9.2, specifying (i) the ------------------ covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount of any Claim the Indemnified Party may have against the Indemnifying Party by reason thereof under this Agreement, and (iii) whether or not the Claim is a Third Party Claim. All Claims by any Indemnified Party under this Article IX shall be asserted and resolved as follows: ----------
(a) Third-Party Claims. ------------------
(i) In the event that an Indemnified Party becomes aware of a Third Party Claim for which an Indemnifying Party would be liable to an Indemnified Party hereunder, the Indemnified Party shall with reasonable promptness notify in writing the Indemnifying Party of such Claim, identifying the basis for such Claim or demand, and the amount or the estimated amount thereof to the extent then determinable (which estimate shall not be conclusive of the final amount of such Claim and demand; the "Claim Notice")arises; provided, however, that any the failure to give provide such Claim Notice will notice shall not be deemed a waiver release such Indemnifying Party from any of any rights of the Indemnified Party its obligations under this Article VI except to the extent the rights of the such Indemnifying Party are actually is materially prejudiced by such failurefailure and shall not relieve such Indemnifying Party from any other obligation or Liability that it may have to any Indemnified Party otherwise than under this Article VI. The obligations and Liabilities of any Indemnifying Party will notify under this Article VI with respect to Losses arising from claims of any third party which are subject to the indemnification provided for in this Article VI (“Third Party Claims”) shall be governed by and contingent upon the following additional terms and conditions: if an Indemnified Party shall receive notice of any Third Party Claim, the Indemnified Party as soon as practicable whether shall give the applicable Indemnifying Party desires, at its sole cost and expense, to defend notice of such Third Party Claim within 30 days of the receipt by the Indemnified Party of such notice; provided, however, that the failure to provide such notice shall not release such Indemnifying Party from any of its obligations under this Article VI except to the extent such Indemnifying Party is materially prejudiced by such failure and shall not relieve such Indemnifying Party from any other obligation or Liability that it may have to any Indemnified Party otherwise than under this Article VI. If any Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such Third Party Claim. If the , then such Indemnifying Party notifies shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party that within five days of the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section ------- 9.3
(a) the Indemnifying Party shall retain counsel (who shall be reasonably ------ acceptable to receipt of such notice from the Indemnified Party) ; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party, in its sole and absolute discretion, for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall pay be entitled to retain its own counsel, in each jurisdiction for which the reasonable fees and disbursements of such counsel with regard thereto; provided, however, that any Indemnified Party determines counsel is hereby authorizedrequired, prior to the date on which it receives written notice from the Indemnifying Party designating such counsel, to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party, to file . In the event any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party. After the Indemnifying Party shall retain exercises the right to undertake any such counseldefense against any such Third Party Claim as provided above, the Indemnified Party shall have the right cooperate with such Indemnifying Party in such defense and make available to retain its own counselsuch Indemnifying Party, but the fees and expenses of such counsel shall be at the expense of Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by such Indemnified Party unless (x) Indemnifying Party. Similarly, in the Indemnifying Party and event the Indemnified Party shall have mutually agreed to is, directly or indirectly, conducting the retention of such counsel or (y) the named parties of defense against any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate 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. The Indemnifying Party shall not, in connection with any proceedings or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand which the Indemnifying Party defends 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). A Claim or demand may not be settled by either party without the prior written consent of the other party (which consent will not be unreasonably withheld or delayed) unless, as part of such settlement, the Indemnified Party shall receive a full and unconditional release reasonably satisfactory to the Indemnifying Party. Notwithstanding the foregoingClaim, the Indemnifying Party shall not settle any claim cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at such Indemnifying Party’s expense, all such witnesses, records, materials and information in such Indemnifying Party’s possession or under such Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Party if such Claim is not exclusively for monetary DamagesParty.
(ii) If the Indemnifying Party fails to notify the Indemnified Party that the Indemnifying Party desires to defend the Third Party Claim pursuant to the preceding paragraph 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 vigorously and diligently 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 (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying -------- ------- Party will, at the sole cost and expense of the Indemnifying Party, 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 paragraph, if the Indemnifying Party has notified the Indemnified Party 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 Party the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this paragraph or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in connection with such litigation. The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this paragraph, and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
Appears in 1 contract
Samples: Asset Transfer and Liquidation Agreement (Willis Lease Finance Corp)
Notice, Etc. A (a) To the extent that undertakings of any Indemnifying Party set forth in this Article VI may be unenforceable, such Indemnifying Party shall contribute the maximum amount that it is permitted to contribute under Applicable Law to the payment and satisfaction of all Losses incurred by the Indemnified Party.
(b) An Indemnified Party shall give Xxxxxx or WEST, as the applicable indemnifying party required to make an indemnification ----------- payment pursuant to this Agreement ("the “Indemnifying Party"”) shall have no liability with respect notice of any matter which an Indemnified Party has determined has given or could give rise to Third Party Claims or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation a right of indemnification under this Agreement, unless within 60 days of such determination, stating the party entitled amount of the Loss, if known, and method of computation thereof, and containing a reference to receive the provisions of this Agreement in respect of which such right of indemnification payment ("Indemnified Party") gives is claimed or arises; provided, however, that the failure to provide such notice to shall not release the Indemnifying Party in accordance with terms hereof, as soon as practical following the time at which the Indemnified Party discovered such Claim (from any of its obligations under this Article VI except to the extent the Indemnifying Party is not materially prejudiced by any delay in the delivery of such notice) failure and in any event prior to the applicable date specified in Section 9.1 or 9.2, specifying (i) the ------------------ covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount of any Claim the Indemnified Party may have against shall not relieve the Indemnifying Party by reason thereof from any other obligation or Liability that it may have to any Indemnified Party otherwise than under this Agreement, Article VI. The obligations and (iii) whether or not Liabilities of the Claim is a Third Party Claim. All Claims by any Indemnified Indemnifying Party under this Article IX VI with respect to Losses arising from claims of any third party which are subject to the indemnification provided for in this Article VI (“Third Party Claims”) shall be asserted governed by and resolved as followscontingent upon the following additional terms and conditions: ----------
(a) Third-Party Claims. ------------------
(i) In the event that if an Indemnified Party becomes aware shall receive notice of a any Third Party Claim for which an Indemnifying Party would be liable to an Indemnified Party hereunderClaim, the Indemnified Party shall with reasonable promptness notify in writing give the Indemnifying Party notice of such Claim, identifying the basis for such Third Party Claim or demand, and the amount or the estimated amount thereof to the extent then determinable (which estimate shall not be conclusive within 30 days of the final amount receipt by the Indemnified Party of such Claim and demand; the "Claim Notice")notice; provided, however, that any the failure to give provide such Claim Notice will notice shall not be deemed a waiver release the Indemnifying Party from any of any rights of the Indemnified Party its obligations under this Article VI except to the extent the rights of Indemnifying Party is materially prejudiced by such failure and shall not relieve the Indemnifying Party are actually prejudiced by such failure. The Indemnifying Party will notify the from any other obligation or Liability that it may have to any Indemnified Party as soon as practicable whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Third Party Claimotherwise than under this Article VI. If the Indemnifying Party notifies acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that the Indemnifying Party desires to defend the Indemnified Party with respect to the may result from such Third Party Claim pursuant to this Section ------- 9.3
(a) Claim, then the Indemnifying Party shall retain be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel (who shall be reasonably ------ acceptable of its choice if it gives notice of its intention to do so to the Indemnified Party within five days of the receipt of such notice from the Indemnified Party) ; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party, in its sole and absolute discretion, for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall pay be entitled to retain its own counsel, in each jurisdiction for which the reasonable fees and disbursements of such counsel with regard thereto; provided, however, that any Indemnified Party determines counsel is hereby authorizedrequired, prior to the date on which it receives written notice from the Indemnifying Party designating such counsel, to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of . In the Indemnifying Party. After event the Indemnifying Party shall retain exercises the right to undertake any such counseldefense against any such Third Party Claim as provided above, the Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (x) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (y) the named parties of any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate 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. The Indemnifying Party shall not, in connection with any proceedings or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party in such defense and its counsel in contesting any claim or demand which the Indemnifying Party defends 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). A Claim or demand may not be settled by either party without the prior written consent of the other party (which consent will not be unreasonably withheld or delayed) unless, as part of such settlement, the Indemnified Party shall receive a full and unconditional release reasonably satisfactory make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by such Indemnifying Party. Notwithstanding Similarly, in the foregoingevent the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall not settle any claim cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at such Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the 20 Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Party if such Claim is not exclusively for monetary DamagesParty.
(ii) If the Indemnifying Party fails to notify the Indemnified Party that the Indemnifying Party desires to defend the Third Party Claim pursuant to the preceding paragraph 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 vigorously and diligently 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 (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying -------- ------- Party will, at the sole cost and expense of the Indemnifying Party, 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 paragraph, if the Indemnifying Party has notified the Indemnified Party 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 Party the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this paragraph or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in connection with such litigation. The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this paragraph, and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
Appears in 1 contract
Samples: Asset Purchase Agreement (Willis Lease Finance Corp)
Notice, Etc. A party Party required to make an indemnification ----------- payment pursuant to this Agreement ("Indemnifying Party") shall have no liability with respect to Third Party Claims or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation under this Agreement, Agreement unless the party Party entitled to receive such indemnification payment ("Indemnified Party") gives notice to the Indemnifying Party in accordance with terms hereof, as soon as practical following the time at which the Indemnified Party discovered such Claim (except to the extent the Indemnifying Party is not prejudiced by any delay in the delivery of such notice) and in any event prior to the applicable date specified in Section 9.1 or 9.2, specifying (i) the ------------------ covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount of any Claim the Indemnified Party may have against the Indemnifying Party by reason thereof under this Agreement, and (iii) whether or not the Claim is a Third Party Claim. All Claims by any With respect to Third Party Claims, an Indemnified Party under this Article IX shall be asserted and resolved as follows: ----------
(a) Third-Party Claims. ------------------
(i) In shall give the event that an Indemnified Indemnifying Party becomes aware prompt notice of a any Third Party Claim, (ii) prior to taking any action with respect to such Third Party Claim, shall consult with the Indemnifying Party as to the procedure to be followed in defending, settling, or compromising the Third Party Claim, (iii) shall not consent to any settlement or compromise of the Third Party Claim for which an Indemnifying Party would be liable to an Indemnified Party hereunder, without the Indemnified Party shall with reasonable promptness notify in writing the Indemnifying Party of such Claim, identifying the basis for such Claim or demand, and the amount or the estimated amount thereof to the extent then determinable (which estimate shall not be conclusive of the final amount of such Claim and demand; the "Claim Notice"); provided, however, that any failure to give such Claim Notice will not be deemed a waiver of any rights of the Indemnified Party except to the extent the rights written consent of the Indemnifying Party are actually prejudiced by such failure. The Indemnifying Party will notify the Indemnified Party as soon as practicable whether (which consent shall not be unreasonably withheld or delayed), and (iv) shall permit the Indemnifying Party, if it so elects, to assume the exclusive defense of such Third Party desiresClaim (including, except as provided in the penultimate sentence of this Section, the compromise or settlement thereof) at its sole own cost and expense, to defend the Indemnified Party against such Third Party Claim. If the Indemnifying Party notifies shall elect to assume the Indemnified Party that the Indemnifying Party desires to defend the Indemnified Party with respect to the exclusive defense of any Third Party Claim pursuant to this Section ------- 9.3
(a) the Indemnifying Party Agreement, it shall retain counsel (who shall be reasonably ------ acceptable to the Indemnified Party) to represent notify the Indemnified Party in writing of such election, and the Indemnifying Party shall pay not be liable hereunder for any fees or expenses of the reasonable fees and disbursements of Indemnified Party’s counsel relating to such counsel with regard thereto; provided, however, that any Indemnified Third Party is hereby authorized, prior to Claim after the date on which it receives written notice from the Indemnifying Party designating such counsel, of delivery to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party. After the Indemnifying Party shall retain such counsel, the Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense notice of such Indemnified Party unless (x) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (y) the named parties of any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate 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 conductelection. The Indemnifying Party shall not, in connection with will not compromise or settle any proceedings or related proceedings in such Third Party Claim without the same jurisdiction, be liable for the fees and expenses written consent of more than one such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand which the Indemnifying Party defends 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). A Claim or demand may not be settled by either party without the prior written consent of the other party (which consent will shall not be unreasonably withheld or delayed) unlessif the relief provided is other than monetary damages or such relief would have a material adverse effect on the Indemnified Party. Notwithstanding the foregoing, as part of such settlementif the Indemnifying Party elects to assume the defense with respect to any Third Party Claim, the Indemnified Indemnifying Party shall receive have the right to compromise or settle for solely monetary damages such Third Party Claim, provided such settlement will not result in or have a full and unconditional release reasonably satisfactory to material adverse effect on the Indemnifying Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not settle which defends any claim without the prior written consent of the Indemnified Party if such Claim is not exclusively for monetary Damages.
(ii) If the Indemnifying Party fails to notify the Indemnified Party that the Indemnifying Party desires to defend the Third Party Claim pursuant shall, to the preceding paragraph then the Indemnified Party will have the right to defend, at the sole cost and expense extent required by any insurance policies of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently 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 (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying -------- ------- Party will, at the sole cost and expense of the Indemnifying Party, cooperate with the Indemnified Party and its counsel in contesting share or give control thereof to 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 paragraph, if the Indemnifying Party has notified the Indemnified Party that the Indemnifying Party disputes its liability hereunder to the Indemnified Party insurer 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 paragraph or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in connection with such litigation. The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this paragraph, and the Indemnifying Party will bear its own costs and expenses with respect to such participationClaim.
Appears in 1 contract
Samples: Share Purchase Agreement (China Unistone Acquisition CORP)
Notice, Etc. A party Party required to make an indemnification ----------- payment pursuant to this Agreement ("Indemnifying Party") shall have no liability with respect to Third Party Claims or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation under this Agreement, Agreement unless the party Party entitled to receive such indemnification payment ("Indemnified Party") gives notice to the Indemnifying Party in accordance with terms hereof, as soon as practical following the time at which the Indemnified Party discovered such Claim (except to the extent the Indemnifying Party is not prejudiced by any delay in the delivery of such notice) and in any event prior to the applicable date specified in Section 9.1 or 9.2, specifying (i) the ------------------ covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount (or estimate, if the magnitude of the Claim cannot be precisely determined at that time) of any Claim the Indemnified Party may have against the Indemnifying Party by reason thereof under this Agreement, and (iii) whether or not the Claim is a Third Party Claim. All Claims by any With respect to Third Party Claims, an Indemnified Party under this Article IX shall be asserted and resolved as follows: ----------
(a) Third-Party Claims. ------------------
(i) In shall give the event that an Indemnified Indemnifying Party becomes aware prompt notice of a any Third Party Claim, (ii) prior to taking any action with respect to such Third Party Claim, shall consult with the Indemnifying Party as to the procedure to be followed in defending, settling, or compromising the Third Party Claim, (iii) shall not consent to any settlement or compromise of the Third Party Claim for which an Indemnifying Party would be liable to an Indemnified Party hereunder, without the Indemnified Party shall with reasonable promptness notify in writing the Indemnifying Party of such Claim, identifying the basis for such Claim or demand, and the amount or the estimated amount thereof to the extent then determinable (which estimate shall not be conclusive of the final amount of such Claim and demand; the "Claim Notice"); provided, however, that any failure to give such Claim Notice will not be deemed a waiver of any rights of the Indemnified Party except to the extent the rights written consent of the Indemnifying Party are actually prejudiced by such failure. The Indemnifying Party will notify the Indemnified Party as soon as practicable whether (which consent shall not be unreasonably withheld or delayed), and (iv) shall permit the Indemnifying Party, if it so elects, to assume the exclusive defense of such Third Party desiresClaim (including, except as provided in the penultimate sentence of this Section, the compromise or settlement thereof) at its sole own cost and expense, to defend the Indemnified Party against such Third Party Claim. If the Indemnifying Party notifies shall elect to assume the Indemnified Party that the Indemnifying Party desires to defend the Indemnified Party with respect to the exclusive defense of any Third Party Claim pursuant to this Section ------- 9.3
(a) the Indemnifying Party Agreement, it shall retain counsel (who shall be reasonably ------ acceptable to the Indemnified Party) to represent notify the Indemnified Party in writing of such election, and the Indemnifying Party shall pay not be liable hereunder for any fees or expenses of the reasonable fees and disbursements of Indemnified Party's counsel relating to such counsel with regard thereto; provided, however, that any Indemnified Third Party is hereby authorized, prior to Claim after the date on which it receives written notice from the Indemnifying Party designating such counsel, of delivery to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party. After the Indemnifying Party shall retain such counsel, the Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense notice of such Indemnified Party unless (x) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (y) the named parties of any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate 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 conductelection. The Indemnifying Party shall not, in connection with will not compromise or settle any proceedings or related proceedings in such Third Party Claim without the same jurisdiction, be liable for the fees and expenses written consent of more than one such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand which the Indemnifying Party defends 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). A Claim or demand may not be settled by either party without the prior written consent of the other party (which consent will shall not be unreasonably withheld or delayed) unlessif the relief provided is other than monetary damages or such relief would have a material adverse effect on the Indemnified Party. Notwithstanding the foregoing, as part of such settlementif the Indemnifying Party elects to assume the defense with respect to any Third Party Claim, the Indemnified Indemnifying Party shall receive have the right to compromise or settle for solely monetary damages such Third Party Claim, provided such settlement will not result in or have a full and unconditional release reasonably satisfactory to material adverse effect on the Indemnifying Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not settle which defends any claim without the prior written consent of the Indemnified Party if such Claim is not exclusively for monetary Damages.
(ii) If the Indemnifying Party fails to notify the Indemnified Party that the Indemnifying Party desires to defend the Third Party Claim pursuant shall, to the preceding paragraph then the Indemnified Party will have the right to defend, at the sole cost and expense extent required by any insurance policies of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently 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 (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying -------- ------- Party will, at the sole cost and expense of the Indemnifying Party, cooperate with the Indemnified Party and its counsel in contesting share or give control thereof to 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 paragraph, if the Indemnifying Party has notified the Indemnified Party that the Indemnifying Party disputes its liability hereunder to the Indemnified Party insurer 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 paragraph or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in connection with such litigation. The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this paragraph, and the Indemnifying Party will bear its own costs and expenses with respect to such participationClaim.
Appears in 1 contract
Samples: Stock Purchase Agreement (Chardan North China Acquisition Corp)
Notice, Etc. A party required to make an indemnification ----------- payment pursuant to this Agreement An Indemnified Party shall give Xxxxxx ("the “Indemnifying Party"”) shall have no liability with respect notice of any matter which an Indemnified Party has determined has given or could give rise to Third Party Claims or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation a right of indemnification under this Agreement, unless within 60 days of such determination, stating the party entitled amount of the Loss, if known, and method of computation thereof, and containing a reference to receive the provisions of this Agreement in respect of which such right of indemnification payment ("Indemnified Party") gives is claimed or arises; provided, however, that the failure to provide such notice to shall not release the Indemnifying Party in accordance with terms hereof, as soon as practical following the time at which the Indemnified Party discovered such Claim (from any of its obligations under this Article VI except to the extent the Indemnifying Party is not materially prejudiced by any delay in the delivery of such notice) failure and in any event prior to the applicable date specified in Section 9.1 or 9.2, specifying (i) the ------------------ covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount of any Claim the Indemnified Party may have against shall not relieve the Indemnifying Party by reason thereof from any other obligation or Liability that it may have to any Indemnified Party otherwise than under this Agreement, Article VI. The obligations and (iii) whether or not Liabilities of the Claim is a Third Party Claim. All Claims by any Indemnified Indemnifying Party under this Article IX VI with respect to Losses arising from claims of any third party which are subject to the indemnification provided for in this Article VI (“Third Party Claims”) shall be asserted governed by and resolved as followscontingent upon the following additional terms and conditions: ----------
(a) Third-Party Claims. ------------------
(i) In the event that if an Indemnified Party becomes aware shall receive notice of a any Third Party Claim for which an Indemnifying Party would be liable to an Indemnified Party hereunderClaim, the Indemnified Party shall with reasonable promptness notify in writing give the Indemnifying Party notice of such Claim, identifying the basis for such Third Party Claim or demand, and the amount or the estimated amount thereof to the extent then determinable (which estimate shall not be conclusive within 30 days of the final amount receipt by the Indemnified Party of such Claim and demand; the "Claim Notice")notice; provided, however, that any the failure to give provide such Claim Notice will notice shall not be deemed a waiver release the Indemnifying Party from any of any rights of the Indemnified Party its obligations under this Article VI except to the extent the rights of Indemnifying Party is materially prejudiced by such failure and shall not relieve the Indemnifying Party are actually prejudiced by such failure. The Indemnifying Party will notify the from any other obligation or Liability that it may have to any Indemnified Party as soon as practicable whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Third Party Claimotherwise than under this Article VI. If the Indemnifying Party notifies acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that the Indemnifying Party desires to defend the Indemnified Party with respect to the may result from such Third Party Claim pursuant to this Section ------- 9.3
(a) Claim, then the Indemnifying Party shall retain be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel (who shall be reasonably ------ acceptable of its choice if it gives notice of its intention to do so to the Indemnified Party within five days of the receipt of such notice from the Indemnified Party) ; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party, in its sole and absolute discretion, for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall pay be entitled to retain its own counsel, in each jurisdiction for which the reasonable fees and disbursements of such counsel with regard thereto; provided, however, that any Indemnified Party determines counsel is hereby authorizedrequired, prior to the date on which it receives written notice from the Indemnifying Party designating such counsel, to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of . In the Indemnifying Party. After event the Indemnifying Party shall retain exercises the right to undertake any such counseldefense against any such Third Party Claim as provided above, the Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (x) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (y) the named parties of any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate 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. The Indemnifying Party shall not, in connection with any proceedings or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party in such defense and its counsel in contesting any claim or demand which the Indemnifying Party defends 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). A Claim or demand may not be settled by either party without the prior written consent of the other party (which consent will not be unreasonably withheld or delayed) unless, as part of such settlement, the Indemnified Party shall receive a full and unconditional release reasonably satisfactory make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by such Indemnifying Party. Notwithstanding Similarly, in the foregoingevent the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall not settle any claim cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at such Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Party if such Claim is not exclusively for monetary DamagesParty.
(ii) If the Indemnifying Party fails to notify the Indemnified Party that the Indemnifying Party desires to defend the Third Party Claim pursuant to the preceding paragraph 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 vigorously and diligently 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 (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying -------- ------- Party will, at the sole cost and expense of the Indemnifying Party, 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 paragraph, if the Indemnifying Party has notified the Indemnified Party 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 Party the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this paragraph or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in connection with such litigation. The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this paragraph, and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
Appears in 1 contract
Samples: Acquisition Transfer Agreement (Willis Lease Finance Corp)
Notice, Etc. A (a) To the extent that undertakings of any Indemnifying Party set forth in this Article VI may be unenforceable, such Indemnifying Party shall contribute the maximum amount that it is permitted to contribute under Applicable Law to the payment and satisfaction of all Losses incurred by the Indemnified Party.
(b) An Indemnified Party shall give Xxxxxx or WEST, as the applicable indemnifying party required to make an indemnification ----------- payment pursuant to this Agreement ("the “Indemnifying Party"”) shall have no liability with respect notice of any matter which an Indemnified Party has determined has given or could give rise to Third Party Claims or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation a right of indemnification under this Agreement, unless within 60 days of such determination, stating the party entitled amount of the Loss, if known, and method of computation thereof, and containing a reference to receive the provisions of this Agreement in respect of which such right of indemnification payment ("Indemnified Party") gives is claimed or arises; provided, however, that the failure to provide such notice to shall not release the Indemnifying Party in accordance with terms hereof, as soon as practical following the time at which the Indemnified Party discovered such Claim (from any of its obligations under this Article VI except to the extent the Indemnifying Party is not materially prejudiced by any delay in the delivery of such notice) failure and in any event prior to the applicable date specified in Section 9.1 or 9.2, specifying (i) the ------------------ covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount of any Claim the Indemnified Party may have against shall not relieve the Indemnifying Party by reason thereof from any other obligation or Liability that it may have to any Indemnified Party otherwise than under this Agreement, Article VI. The obligations and (iii) whether or not Liabilities of the Claim is a Third Party Claim. All Claims by any Indemnified Indemnifying Party under this Article IX VI with respect to Losses arising from claims of any third party which are subject to the indemnification provided for in this Article VI (“Third Party Claims”) shall be asserted governed by and resolved as followscontingent upon the following additional terms and conditions: ----------
(a) Third-Party Claims. ------------------
(i) In the event that if an Indemnified Party becomes aware shall receive notice of a any Third Party Claim for which an Indemnifying Party would be liable to an Indemnified Party hereunderClaim, the Indemnified Party shall with reasonable promptness notify in writing give the Indemnifying Party notice of such Claim, identifying the basis for such Third Party Claim or demand, and the amount or the estimated amount thereof to the extent then determinable (which estimate shall not be conclusive within 30 days of the final amount receipt by the Indemnified Party of such Claim and demand; the "Claim Notice")notice; provided, however, that any the failure to give provide such Claim Notice will notice shall not be deemed release the Indemnifying Party from any of its obligations under [**] = Portions of this exhibit have been omitted pursuant to a waiver confidential treatment request. Confidential Treatment Requested: Information for which confidential treatment has been requested is omitted and is noted with asterisks. An unredacted version of any rights of this document has been filed separately with the Indemnified Party Securities and Exchange Commission. this Article VI except to the extent the rights of Indemnifying Party is materially prejudiced by such failure and shall not relieve the Indemnifying Party are actually prejudiced by such failure. The Indemnifying Party will notify the from any other obligation or Liability that it may have to any Indemnified Party as soon as practicable whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Third Party Claimotherwise than under this Article VI. If the Indemnifying Party notifies acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that the Indemnifying Party desires to defend the Indemnified Party with respect to the may result from such Third Party Claim pursuant to this Section ------- 9.3
(a) Claim, then the Indemnifying Party shall retain be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel (who shall be reasonably ------ acceptable of its choice if it gives notice of its intention to do so to the Indemnified Party within five days of the receipt of such notice from the Indemnified Party) ; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party, in its sole and absolute discretion, for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall pay be entitled to retain its own counsel, in each jurisdiction for which the reasonable fees and disbursements of such counsel with regard thereto; provided, however, that any Indemnified Party determines counsel is hereby authorizedrequired, prior to the date on which it receives written notice from the Indemnifying Party designating such counsel, to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of . In the Indemnifying Party. After event the Indemnifying Party shall retain exercises the right to undertake any such counseldefense against any such Third Party Claim as provided above, the Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (x) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (y) the named parties of any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate 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. The Indemnifying Party shall not, in connection with any proceedings or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party in such defense and its counsel in contesting any claim or demand which the Indemnifying Party defends 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). A Claim or demand may not be settled by either party without the prior written consent of the other party (which consent will not be unreasonably withheld or delayed) unless, as part of such settlement, the Indemnified Party shall receive a full and unconditional release reasonably satisfactory make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by such Indemnifying Party. Notwithstanding Similarly, in the foregoingevent the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall not settle any claim cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at such Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Party if such Claim is not exclusively for monetary DamagesParty.
(ii) If the Indemnifying Party fails to notify the Indemnified Party that the Indemnifying Party desires to defend the Third Party Claim pursuant to the preceding paragraph 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 vigorously and diligently 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 (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying -------- ------- Party will, at the sole cost and expense of the Indemnifying Party, 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 paragraph, if the Indemnifying Party has notified the Indemnified Party 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 Party the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this paragraph or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in connection with such litigation. The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this paragraph, and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
Appears in 1 contract
Samples: Asset Purchase Agreement (Willis Lease Finance Corp)
Notice, Etc. A If any Party entitled to indemnification from another Party under Section 6.03 or Section 6.04 (the “Indemnified Party”) receives notice of any third-party required to make claim or commencement of any third-party action or proceeding (an indemnification ----------- payment pursuant to this Agreement ("Indemnifying Party"“Asserted Liability”) shall have no liability with respect to Third Party Claims or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation under this Agreement, unless the party entitled to receive such indemnification payment ("Indemnified Party") gives notice to the Indemnifying Party in accordance with terms hereof, as soon as practical following the time at which the Indemnified Party discovered such Claim is entitled to indemnification under Section 6.03 or Section 6.04 from another Party hereto (except to the extent the an “Indemnifying Party is not prejudiced by any delay in the delivery of such notice) and in any event prior to the applicable date specified in Section 9.1 or 9.2, specifying (i) the ------------------ covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount of any Claim the Indemnified Party may have against the Indemnifying Party by reason thereof under this Agreement, and (iii) whether or not the Claim is a Third Party Claim. All Claims by any Indemnified Party under this Article IX shall be asserted and resolved as follows: ----------
(a) Third-Party Claims. ------------------
(i) In the event that an Indemnified Party becomes aware of a Third Party Claim for which an Indemnifying Party would be liable to an Indemnified Party hereunderParty”), the Indemnified Party shall with reasonable promptness notify in writing promptly give the Indemnifying Party of such Claimnotice thereof. The Indemnified Party’s failure to notify an Indemnifying Party shall not cause the Indemnified Party to lose its right to indemnification under this Article, identifying the basis for such Claim or demand, and the amount or the estimated amount thereof except to the extent then determinable that such failure materially prejudices the Indemnifying Party’s ability to defend against an Asserted Liability that such Indemnifying Party has the right to defend against hereunder (and except as otherwise set forth in this Article). Such notice shall describe the Asserted Liability in reasonable detail, and if practicable shall indicate the amount (which estimate shall not may be conclusive estimated) of the final amount of such Claim and demand; Losses that have been or may be asserted by the "Claim Notice"); provided, however, that any failure to give such Claim Notice will not be deemed a waiver of any rights Indemnified Party. The Indemnifying Party may defend against an Asserted Liability on behalf of the Indemnified Party except to the extent the rights of the Indemnifying Party are actually prejudiced by such failure. The Indemnifying Party will notify the Indemnified Party as soon as practicable whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section ------- 9.3
(a) the Indemnifying Party shall retain utilizing counsel (who shall be reasonably ------ acceptable to the Indemnified Party, unless (i) the Indemnified Party reasonably objects to such assumption on the grounds that counsel for such Indemnifying Party has indicated that, without a waiver, it cannot represent both the Indemnified Party and the Indemnifying Party shall pay because such representation would be reasonably likely to result in a conflict of interest or because there may be defenses available to the reasonable fees and disbursements of such counsel with regard thereto; provided, however, that any Indemnified Party is hereby authorized, prior that are not available to the date on which it receives written notice from the Indemnifying Party designating such counsel, to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party. After the Indemnifying Party shall retain such counsel, the Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (xii) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention is not capable (by reason of insufficient financial capacity, bankruptcy, receivership, liquidation, managerial deadlock, managerial neglect or similar events) of maintaining a reasonable defense of such counsel action or proceeding, or (yiii) the named parties of any such action or proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate because a conflict seeks injunctive 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. The Indemnifying Party shall not, in connection with any proceedings or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand which the Indemnifying Party defends or, if appropriate and related to the Third Party Claim in question, in making any counterclaim other equitable relief 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). A Claim or demand may not be settled by either party without the prior written consent of the other party (which consent will not be unreasonably withheld or delayed) unless, as part of such settlement, the Indemnified Party shall receive a full and unconditional release reasonably satisfactory to the Indemnifying Party. Notwithstanding the foregoing, the Indemnifying Party shall not settle any claim without the prior written consent of the Indemnified Party if such Claim is not exclusively for monetary Damages.
(ii) If the Indemnifying Party fails to notify the Indemnified Party that the Indemnifying Party desires to defend the Third Party Claim pursuant to the preceding paragraph 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 vigorously and diligently 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 (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying -------- ------- Party will, at the sole cost and expense of the Indemnifying Party, 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 paragraph, if the Indemnifying Party has notified the Indemnified Party 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 Party the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this paragraph or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in connection with such litigation. The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this paragraph, and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
Appears in 1 contract
Samples: Stock Purchase Agreement (Craftmade International Inc)
Notice, Etc. A party required Each Indemnitee agrees to make an give the indemnifying Party ----------- prompt written notice of any Claim, for which such Indemnitee intends to assert a right to indemnification ----------- payment pursuant to this Agreement ("Indemnifying Party") shall have no liability with respect to Third Party Claims or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation under this Agreement, unless the party entitled to receive such indemnification payment ("Indemnified Party") gives notice to the Indemnifying Party in accordance with terms hereof, as soon as practical following the time at which the Indemnified Party discovered such Claim (except to the extent the Indemnifying Party is not prejudiced by any delay in the delivery of such notice) and in any event prior to the applicable date specified in Section 9.1 or 9.2, specifying (i) the ------------------ covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount of any Claim the Indemnified Party may have against the Indemnifying Party by reason thereof under this Agreement, and (iii) whether or not the Claim is a Third Party Claim. All Claims by any Indemnified Party under this Article IX shall be asserted and resolved as follows: ----------
(a) Third-Party Claims. ------------------
(i) In the event that an Indemnified Party becomes aware of a Third Party Claim for which an Indemnifying Party would be liable to an Indemnified Party hereunder, the Indemnified Party shall with reasonable promptness notify in writing the Indemnifying Party of such Claim, identifying the basis for such Claim or demand, and the amount or the estimated amount thereof to the extent then determinable (which estimate shall not be conclusive of the final amount of such Claim and demand; the "Claim Notice"); provided, however, that any failure to give such Claim Notice will notification shall not be deemed a waiver of any rights of affect the Indemnified Party Indemnitee's entitlement to indemnification hereunder except to the extent that the rights indemnifying Party shall have been prejudiced as a result of the Indemnifying Party are actually prejudiced by such failure. The Indemnifying indemnifying Party will notify shall have the Indemnified Party sole right (but not the obligation) to defend, settle or otherwise dispose of any Claim for which the Indemnitee intends to assert a right to indemnification under this Agreement as soon contemplated in the preceding sentence on such terms as practicable whether the Indemnifying Party desiresindemnifying Party, at in its sole cost discretion, shall deem appropriate if and expenseso long as the indemnifying Party has recognized in a written notice to the Indemnitee its obligation to indemnify the Indemnitee for any Losses relating to such Claim, and at the indemnifying party's option (subject to defend the Indemnified Party against limitations set forth below) shall be entitled to appoint lead counsel of such Third Party Claimdefense with a nationally recognized reputable counsel acceptable to the Indemnitee; provided, that the indemnifying party shall not have the right to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnitee, if the claim which the indemnifying party seeks to assume control (i) seeks non-monetary relief, (ii) involves criminal or quasi- criminal allegations, (iii) involves a claim to which the Indemnitee reasonably believes an adverse determination would be detrimental to or injure the Indemnitee's reputation or future business prospects, or (iv) involves a claim which, upon petition by the Indemnitee, the appropriate court rules that the indemnifying party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party notifies indemnifying party is permitted to assume and control the Indemnified Party that the Indemnifying Party desires defense and elects to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section ------- 9.3
(a) the Indemnifying Party shall retain counsel (who shall be reasonably ------ acceptable to the Indemnified Party) to represent the Indemnified Party and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel with regard thereto; provided, however, that any Indemnified Party is hereby authorized, prior to the date on which it receives written notice from the Indemnifying Party designating such counsel, to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party. After the Indemnifying Party shall retain such counseldo so, the Indemnified Party Indemnitee shall have the right to retain its own counselemploy counsel separate from counsel employed by the indemnifying party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnitee shall be at the expense of such Indemnified Party the Indemnitee unless (xi) the employment thereof has been specifically authorized by the indemnifying party in writing, or (ii) the indemnifying party has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the indemnifying party and the Indemnitee. If the Indemnifying Party and shall control the Indemnified Party shall have mutually agreed to the retention of such counsel or (y) the named parties defense of any such proceeding (including any impleaded parties) include both claim, the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate 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. The Indemnifying indemnifying Party shall not, in connection with any proceedings or related proceedings in obtain the same jurisdiction, be liable for the fees and expenses of more than one such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand which the Indemnifying Party defends 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). A Claim or demand may not be settled by either party without the prior written consent of the other party (which consent will not be unreasonably withheld or delayed) unless, as part of such settlement, the Indemnified Party shall receive a full and unconditional release reasonably satisfactory Indemnitee prior to the Indemnifying Party. Notwithstanding the foregoing, the Indemnifying Party shall not settle any claim without the prior written consent of the Indemnified Party if such Claim is not exclusively for monetary Damages.
(ii) If the Indemnifying Party fails to notify the Indemnified Party that the Indemnifying Party desires to defend the Third Party Claim pursuant to the preceding paragraph then the Indemnified Party will have the right ceasing to defend, at settling or otherwise disposing of any Claim if as a result thereof the sole cost and expense Indemnitee would become subject to injunctive or other equitable relief that could reasonably be expected to have a material adverse effect on the business of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently 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 (except as provided Indemnitee in the immediately preceding sentence) any settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying -------- ------- Party will, at the sole cost and expense of the Indemnifying Party, 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 paragraph, if the Indemnifying Party has notified the Indemnified Party 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 Party the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this paragraph or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in connection with such litigation. The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this paragraph, and the Indemnifying Party will bear its own costs and expenses with respect to such participationnonmonetary manner.
Appears in 1 contract
Samples: Collaborative Research and License Agreement (Myriad Genetics Inc)
Notice, Etc. (a) A party Party required to make an indemnification ----------- payment pursuant to this Agreement ("“Indemnifying Party"”) shall have no liability with respect to Third Party Claims or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation under this Agreement, Agreement unless the party Party entitled to receive such indemnification payment ("“Indemnified Party"”) gives notice to the Indemnifying Party in accordance with terms hereof, as soon as practical following the time at which the Indemnified Party discovered such Claim (except to the extent the Indemnifying Party is not prejudiced by any delay in the delivery of such notice) and in any event prior to the applicable date specified in Section 9.1 or 9.2, specifying (i) the ------------------ covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount (or estimate, if the magnitude of the Claim cannot be precisely determined at that time) of any Claim the Indemnified Party may have against the Indemnifying Party by reason thereof under this Agreement, and (iii) whether or not the Claim is a Third Party Claim. All Claims by any .
(b) With respect to Third Party Claims, an Indemnified Party under this Article IX shall be asserted and resolved as follows: ----------
(a) Third-Party Claims. ------------------
(i) In shall give the event that an Indemnified Indemnifying Party becomes aware prompt notice of a any Third Party Claim, (ii) prior to taking any action with respect to such Third Party Claim, shall consult with the Indemnifying Party as to the procedure to be followed in defending, settling, or compromising the Third Party Claim, (iii) shall not consent to any settlement or compromise of the Third Party Claim for which an Indemnifying Party would be liable to an Indemnified Party hereunder, without the Indemnified Party shall with reasonable promptness notify in writing the Indemnifying Party of such Claim, identifying the basis for such Claim or demand, and the amount or the estimated amount thereof to the extent then determinable (which estimate shall not be conclusive of the final amount of such Claim and demand; the "Claim Notice"); provided, however, that any failure to give such Claim Notice will not be deemed a waiver of any rights of the Indemnified Party except to the extent the rights written consent of the Indemnifying Party are actually prejudiced by such failure. The Indemnifying Party will notify the Indemnified Party as soon as practicable whether (which consent shall not be unreasonably withheld or delayed), and (iv) shall permit the Indemnifying Party, if it so elects, to assume the exclusive defense of such Third Party desiresClaim (including, except as provided in Section 9.4(d), the compromise or settlement thereof) at its sole own cost and expense, to defend the Indemnified Party against such Third Party Claim. .
(c) If the Indemnifying Party notifies shall elect to assume the Indemnified Party that the Indemnifying Party desires to defend the Indemnified Party with respect to the exclusive defense of any Third Party Claim pursuant to this Section ------- 9.3
(a) the Indemnifying Party Agreement, it shall retain counsel (who shall be reasonably ------ acceptable to the Indemnified Party) to represent notify the Indemnified Party in writing of such election, and the Indemnifying Party shall pay not be liable hereunder for any fees or expenses of the reasonable fees and disbursements of Indemnified Party’s counsel relating to such counsel with regard thereto; provided, however, that any Indemnified Third Party is hereby authorized, prior to Claim after the date on which it receives written notice from the Indemnifying Party designating such counsel, of delivery to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party. After the Indemnifying Party shall retain such counsel, the Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense notice of such Indemnified Party unless election.
(xd) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (y) the named parties of any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate 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. The Indemnifying Party shall not, in connection with will not compromise or settle any proceedings or related proceedings in such Third Party Claim without the same jurisdiction, be liable for the fees and expenses written consent of more than one such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand which the Indemnifying Party defends 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). A Claim or demand may not be settled by either party without the prior written consent of the other party (which consent will shall not be unreasonably withheld or delayed) unless, as part of if the relief provided is other than monetary damages or such settlement, relief would have a Material Adverse Effect on the Indemnified Party shall receive a full and unconditional release reasonably satisfactory to the Indemnifying Party. Notwithstanding the foregoing, if the Indemnifying Party elects to assume the defense with respect to any Third Party Claim, the Indemnifying Party shall not settle any claim without the prior written consent of the Indemnified Party if such Claim is not exclusively for monetary Damages.
(ii) If the Indemnifying Party fails to notify the Indemnified Party that the Indemnifying Party desires to defend the Third Party Claim pursuant to the preceding paragraph then the Indemnified Party will have the right to defendcompromise or settle for solely monetary damages such Third Party Claim, at provided such settlement would not reasonably be expected to have a Material Adverse Effect on the sole cost and expense of Indemnified Party.
(e) Notwithstanding the Indemnifying Partyforegoing, the Party which defends any Third Party Claim shall, to the extent required by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the Indemnified Party to a final conclusion or will be settled at the discretion any insurance policies 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 settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying -------- ------- Party will, at the sole cost and expense of the Indemnifying Party, cooperate with the Indemnified Party and its counsel in contesting share or give control thereof to 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 paragraph, if the Indemnifying Party has notified the Indemnified Party that the Indemnifying Party disputes its liability hereunder to the Indemnified Party insurer 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 paragraph or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in connection with such litigation. The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this paragraph, and the Indemnifying Party will bear its own costs and expenses with respect to such participationClaim.
Appears in 1 contract
Samples: Share Purchase Agreement (China Growth Equity Investment LTD)
Notice, Etc. (a) A party Party required to make an indemnification ----------- payment pursuant to this Agreement ("“Indemnifying Party"”) shall have no liability with respect to Third Party Claims or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation under this Agreement, Agreement unless the party Party entitled to receive such indemnification payment ("“Indemnified Party"”) gives notice to the Indemnifying Party in accordance with terms hereof, as soon as practical following the time at which the Indemnified Party discovered such Claim (except to the extent the Indemnifying Party is not prejudiced by any delay in the delivery of such notice) and in any event prior to the applicable date specified in Section 9.1 or 9.2, specifying (i) the ------------------ covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount (or estimate, if the magnitude of the Claim cannot be precisely determined at that time) of any Claim the Indemnified Party may have against the Indemnifying Party by reason thereof under this Agreement, and (iii) whether or not the Claim is a Third Party Claim. All Claims by any .
(b) With respect to Third Party Claims, an Indemnified Party under this Article IX shall be asserted and resolved as follows: ----------
(a) Third-Party Claims. ------------------
(i) In shall give the event that an Indemnified Indemnifying Party becomes aware prompt notice of a any Third Party Claim, (ii) prior to taking any action with respect to such Third Party Claim, shall consult with the Indemnifying Party as to the procedure to be followed in defending, settling, or compromising the Third Party Claim, (iii) shall not consent to any settlement or compromise of the Third Party Claim for which an Indemnifying Party would be liable to an Indemnified Party hereunder, without the Indemnified Party shall with reasonable promptness notify in writing the Indemnifying Party of such Claim, identifying the basis for such Claim or demand, and the amount or the estimated amount thereof to the extent then determinable (which estimate shall not be conclusive of the final amount of such Claim and demand; the "Claim Notice"); provided, however, that any failure to give such Claim Notice will not be deemed a waiver of any rights of the Indemnified Party except to the extent the rights written consent of the Indemnifying Party are actually prejudiced by such failure. The Indemnifying Party will notify the Indemnified Party as soon as practicable whether (which consent shall not be unreasonably withheld or delayed), and (iv) shall permit the Indemnifying Party, if it so elects, to assume the exclusive defense of such Third Party desiresClaim (including, except as provided in Section 9.4(d), the compromise or settlement thereof) at its sole own cost and expense, to defend the Indemnified Party against such Third Party Claim. .
(c) If the Indemnifying Party notifies shall elect to assume the Indemnified Party that the Indemnifying Party desires to defend the Indemnified Party with respect to the exclusive defense of any Third Party Claim pursuant to this Section ------- 9.3
(a) the Indemnifying Party Agreement, it shall retain counsel (who shall be reasonably ------ acceptable to the Indemnified Party) to represent notify the Indemnified Party in writing of such election, and the Indemnifying Party shall pay not be liable hereunder for any fees or expenses of the reasonable fees and disbursements of Indemnified Party’s counsel relating to such counsel with regard thereto; provided, however, that any Indemnified Third Party is hereby authorized, prior to Claim after the date on which it receives written notice from the Indemnifying Party designating such counsel, of delivery to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party. After the Indemnifying Party shall retain such counsel, the Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense notice of such Indemnified Party unless election.
(xd) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (y) the named parties of any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate 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. The Indemnifying Party shall not, in connection with will not compromise or settle any proceedings or related proceedings in such Third Party Claim without the same jurisdiction, be liable for the fees and expenses written consent of more than one such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any claim or demand which the Indemnifying Party defends 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). A Claim or demand may not be settled by either party without the prior written consent of the other party (which consent will shall not be unreasonably withheld or delayed) unless, as part of if the relief provided is other than monetary damages or such settlement, relief would be reasonably expected to have a Material Adverse Effect on the Indemnified Party shall receive a full and unconditional release reasonably satisfactory to the Indemnifying Party. Notwithstanding the foregoing, if the Indemnifying Party elects to assume the defense with respect to any Third Party Claim, the Indemnifying Party shall not settle any claim without the prior written consent of the Indemnified Party if such Claim is not exclusively for monetary Damages.
(ii) If the Indemnifying Party fails to notify the Indemnified Party that the Indemnifying Party desires to defend the Third Party Claim pursuant to the preceding paragraph then the Indemnified Party will have the right to defendcompromise or settle for solely monetary damages such Third Party Claim, at provided such settlement would not reasonably be expected to have a Material Adverse Effect on the sole cost and expense of Indemnified Party.
(e) Notwithstanding the Indemnifying Partyforegoing, the Party which defends any Third Party Claim shall, to the extent required by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted by the Indemnified Party to a final conclusion or will be settled at the discretion any insurance policies 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 settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying -------- ------- Party will, at the sole cost and expense of the Indemnifying Party, cooperate with the Indemnified Party and its counsel in contesting share or give control thereof to 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 paragraph, if the Indemnifying Party has notified the Indemnified Party that the Indemnifying Party disputes its liability hereunder to the Indemnified Party insurer 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 paragraph or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in connection with such litigation. The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this paragraph, and the Indemnifying Party will bear its own costs and expenses with respect to such participationClaim.
Appears in 1 contract
Samples: Merger Agreement (China Growth Equity Investment LTD)
Notice, Etc. A (a) To the extent that undertakings of any Indemnifying Party set forth in this Article VI may be unenforceable, such Indemnifying Party shall contribute the maximum amount that it is permitted to contribute under Applicable Law to the payment and satisfaction of all Losses incurred by the Indemnified Party.
(b) An Indemnified Party shall give Xxxxxx or WEST, as the applicable indemnifying party required to make an indemnification ----------- payment pursuant to this Agreement ("the “Indemnifying Party"”) shall have no liability with respect notice of any matter which an Indemnified Party has determined has given or could give rise to Third Party Claims or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation a right of indemnification under this Agreement, unless within 60 days of such determination, stating the party entitled amount of the Loss, if known, and method of computation thereof, and containing a reference to receive the provisions of this Agreement in respect of which such right of indemnification payment ("Indemnified Party") gives is claimed or arises; provided, however, that the failure to provide such notice to shall not release the Indemnifying Party in accordance with terms hereof, as soon as practical following the time at which the Indemnified Party discovered such Claim (from any of its obligations under this Article VI except to the extent the Indemnifying Party is not materially prejudiced by any delay in the delivery of such notice) failure and in any event prior to the applicable date specified in Section 9.1 or 9.2, specifying (i) the ------------------ covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount of any Claim the Indemnified Party may have against shall not relieve the Indemnifying Party by reason thereof from any other obligation or Liability that it may have to any Indemnified Party otherwise than under this Agreement, Article VI. The obligations and (iii) whether or not Liabilities of the Claim is a Third Party Claim. All Claims by any Indemnified Indemnifying Party under this Article IX VI with respect to Losses arising from claims of any third party which are subject to the indemnification provided for in this Article VI (“Third Party Claims”) shall be asserted governed by and resolved as followscontingent upon the following additional terms and conditions: ----------
(a) Third-Party Claims. ------------------
(i) In the event that if an Indemnified Party becomes aware shall receive notice of a any Third Party Claim for which an Indemnifying Party would be liable to an Indemnified Party hereunderClaim, the Indemnified Party shall with reasonable promptness notify in writing give the Indemnifying Party notice of such Claim, identifying the basis for such Third Party Claim or demand, and the amount or the estimated amount thereof to the extent then determinable (which estimate shall not be conclusive within 30 days of the final amount receipt by the Indemnified Party of such Claim and demand; the "Claim Notice")notice; provided, however, that any the failure to give provide such Claim Notice will notice shall not be deemed a waiver release the Indemnifying Party from any of any rights of the Indemnified Party its obligations under this Article VI except to the extent the rights of Indemnifying Party is materially prejudiced by such failure and shall not relieve the Indemnifying Party are actually prejudiced by such failure. The Indemnifying Party will notify the from any other obligation or Liability that it may have to any Indemnified Party as soon as practicable whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Third Party Claimotherwise than under this Article VI. If the Indemnifying Party notifies acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that the Indemnifying Party desires to defend the Indemnified Party with respect to the may result from such Third Party Claim pursuant to this Section ------- 9.3
(a) Claim, then the Indemnifying Party shall retain be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel (who shall be reasonably ------ acceptable of its choice if it gives notice of its intention to do so to the Indemnified Party within five days of the receipt of such notice from the Indemnified Party) ; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party, in its sole and absolute discretion, for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall pay be entitled to retain its own counsel, in each jurisdiction for which the reasonable fees and disbursements of such counsel with regard thereto; provided, however, that any Indemnified Party determines counsel is hereby authorizedrequired, prior to the date on which it receives written notice from the Indemnifying Party designating such counsel, to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of . In the Indemnifying Party. After event the Indemnifying Party shall retain exercises the right to undertake any such counseldefense against any such Third Party Claim as provided above, the Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (x) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (y) the named parties of any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate 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. The Indemnifying Party shall not, in connection with any proceedings or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party in such defense and its counsel in contesting any claim or demand which the Indemnifying Party defends 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). A Claim or demand may not be settled by either party without the prior written consent of the other party (which consent will not be unreasonably withheld or delayed) unless, as part of such settlement, the Indemnified Party shall receive a full and unconditional release reasonably satisfactory make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Confidential Treatment Requested: Information for which confidential treatment has been requested is omitted and is noted with asterisks. Notwithstanding An unredacted version of this document has been filed separately with the foregoingSecurities and Exchange Commission. Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by such Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall not settle any claim cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at such Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. No such Third Party Claim may be settled by the Indemnifying Party without the prior written consent of the Indemnified Party if such Claim is not exclusively for monetary DamagesParty.
(ii) If the Indemnifying Party fails to notify the Indemnified Party that the Indemnifying Party desires to defend the Third Party Claim pursuant to the preceding paragraph 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 vigorously and diligently 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 (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying -------- ------- Party will, at the sole cost and expense of the Indemnifying Party, 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 paragraph, if the Indemnifying Party has notified the Indemnified Party 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 Party the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this paragraph or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in connection with such litigation. The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this paragraph, and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
Appears in 1 contract
Samples: Asset Purchase Agreement (Willis Lease Finance Corp)
Notice, Etc. A Each Indemnitee agrees to give the ----------- indemnifying party required to make an indemnification ----------- payment pursuant to this Agreement prompt written notice of any action, claim, demand, discovery of fact, proceeding or suit (collectively, "Indemnifying PartyClaims") shall have no liability with respect for which such Indemnitee intends to Third Party Claims or otherwise with respect assert a right to any covenant, representation, warranty, agreement, undertaking or obligation indemnification under this Agreement, unless the party entitled to receive such indemnification payment ("Indemnified Party") gives notice to the Indemnifying Party in accordance with terms hereof, as soon as practical following the time at which the Indemnified Party discovered such Claim (except to the extent the Indemnifying Party is not prejudiced by any delay in the delivery of such notice) and in any event prior to the applicable date specified in Section 9.1 or 9.2, specifying (i) the ------------------ covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount of any Claim the Indemnified Party may have against the Indemnifying Party by reason thereof under this Agreement, and (iii) whether or not the Claim is a Third Party Claim. All Claims by any Indemnified Party under this Article IX shall be asserted and resolved as follows: ----------
(a) Third-Party Claims. ------------------
(i) In the event that an Indemnified Party becomes aware of a Third Party Claim for which an Indemnifying Party would be liable to an Indemnified Party hereunder, the Indemnified Party shall with reasonable promptness notify in writing the Indemnifying Party of such Claim, identifying the basis for such Claim or demand, and the amount or the estimated amount thereof to the extent then determinable (which estimate shall not be conclusive of the final amount of such Claim and demand; the "Claim Notice"); provided, however, that any failure to give such Claim Notice will not be deemed a waiver of any rights of the Indemnified Party except to the extent the rights of the Indemnifying Party are actually prejudiced by such failure. The Indemnifying Party will notify the Indemnified Party as soon as practicable whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section ------- 9.3
(a) the Indemnifying Party shall retain counsel (who shall be reasonably ------ acceptable to the Indemnified Party) to represent the Indemnified Party and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel with regard thereto; provided, however, that any Indemnified Party is hereby authorized, prior to the date on which it receives written notice from the Indemnifying Party designating such counsel, to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party. After the Indemnifying Party shall retain such counsel, the Indemnified Party indemnifying party shall have the right to retain participate jointly with the Indemnitee in the Indemnitee's defense, settlement or other disposition of any Claim. With respect to any Claim relating solely to the payment of money damages and which would not result in the Indemnitee becoming subject to injunctive or other relief or otherwise adversely affect the business of the Indemnitee in any manner, and as to which the indemnifying party shall have acknowledged in writing the obligation to indemnify the Indemnitee in full hereunder without regard to any monetary limitation on indemnification in Section 9.02(c), the indemnifying party shall have the right to defend, settle or otherwise dispose of such Claim, on such terms as the indemnifying party, in its sole discretion, shall deem appropriate. If the indemnifying party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own counselexpense, but separate from the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (x) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (y) the named parties of any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties employed by the same counsel would be inappropriate because a conflict or potential conflict exists between indemnifying party, it being understood that the Indemnifying Party and the Indemnified Party which makes representation of both Parties inappropriate under applicable standards of professional conductindemnifying party shall control such defense. The Indemnifying Party indemnifying party shall not, in connection with any proceedings or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one such firm for the Indemnified Party (except to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel employed by the Indemnifying Party). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting Indemnitee for any claim or demand period during which the Indemnifying Party defends or, if appropriate and related to indemnifying party has not assumed the Third Party Claim in question, in making any counterclaim against defense thereof. The indemnifying party shall obtain the Person asserting the Third Party Claim or any cross-complaint against any Person (other than the Indemnified Party or any of its Affiliates). A Claim or demand may not be settled by either party without the prior written consent of the other party (which consent will not be unreasonably withheld or delayed) unless, as part of such settlement, the Indemnified Party shall receive a full and unconditional release reasonably satisfactory Indemnitee prior to the Indemnifying Party. Notwithstanding the foregoing, the Indemnifying Party shall not settle any claim without the prior written consent of the Indemnified Party if such Claim is not exclusively for monetary Damages.
(ii) If the Indemnifying Party fails to notify the Indemnified Party that the Indemnifying Party desires to defend the Third Party Claim pursuant to the preceding paragraph then the Indemnified Party will have the right ceasing to defend, at settling or otherwise disposing of any Claim if as a result thereof the sole cost and expense Indemnitee would become subject to injunctive or other equitable relief or the business of the Indemnifying Party, the Third Party Claim by all appropriate proceedings, which proceedings will Indemnitee would be vigorously and diligently 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 (except as provided adversely affected in the immediately preceding sentence) any settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying -------- ------- Party will, at the sole cost and expense of the Indemnifying Party, 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 paragraph, if the Indemnifying Party has notified the Indemnified Party 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 Party the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this paragraph or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in connection with such litigation. The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this paragraph, and the Indemnifying Party will bear its own costs and expenses with respect to such participationmanner.
Appears in 1 contract
Samples: Network Purchase Agreement (Telco Communications Group Inc)
Notice, Etc. A party required (a) In order to make assert an indemnification ----------- payment pursuant claim hereunder, the Indemnitee shall give the indemnifying party prompt written notice of any action, claim, demand, discovery of fact, proceeding or suit (collectively, “Claims”) for which such Indemnitee intends to this Agreement ("Indemnifying Party") shall have no liability with respect assert a right to Third Party Claims or otherwise with respect to any covenant, representation, warranty, agreement, undertaking or obligation indemnification under this Agreement, unless the party entitled to receive such indemnification payment ("Indemnified Party") gives notice to the Indemnifying Party in accordance with terms hereof, as soon as practical following the time at which the Indemnified Party discovered such Claim (except to the extent the Indemnifying Party is not prejudiced by any delay in the delivery of such notice) and in any event prior to the applicable date specified in Section 9.1 or 9.2, specifying (i) the ------------------ covenant, representation or warranty, agreement, undertaking or obligation contained herein which it asserts has been breached, (ii) in reasonable detail, the nature and dollar amount of any Claim the Indemnified Party may have against the Indemnifying Party by reason thereof under this Agreement, and (iii) whether or not the Claim is a Third Party Claim. All Claims by any Indemnified Party under this Article IX shall be asserted and resolved as follows: ----------
(a) Third-Party Claims. ------------------
(i) In the event that an Indemnified Party becomes aware of a Third Party Claim for which an Indemnifying Party would be liable to an Indemnified Party hereunder, the Indemnified Party shall with reasonable promptness notify in writing the Indemnifying Party of such Claim, identifying the basis for such Claim or demand, and the amount or the estimated amount thereof to the extent then determinable (which estimate shall not be conclusive of the final amount of such Claim and demand; the "Claim Notice"); provided, however, that any failure to give such Claim Notice will not be deemed a waiver no delay or deficiency on the part of the Indemnitee in so notifying the indemnifying party shall relieve the indemnifying party of any rights of the Indemnified Party obligation hereunder except to the extent the rights of the Indemnifying Party are actually indemnifying party has been prejudiced by such delay or failure. The Indemnifying Party will notify the Indemnified Party as soon as practicable whether the Indemnifying Party desires, at its sole cost and expenseWith respect to a claim by a third party against an Indemnitee (other than an Assumed Claim, to defend the Indemnified Party against such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this which Section ------- 9.3
(a9.05(b) the Indemnifying Party shall retain counsel (who shall be reasonably ------ acceptable to the Indemnified Party) to represent the Indemnified Party and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel with regard thereto; provided, however, that any Indemnified Party is hereby authorized, prior to the date on which it receives written notice from the Indemnifying Party designating such counsel, to retain counsel, whose fees and expenses shall be at the expense of the Indemnifying Party, to file any motion, answer or other pleading and take such other action which it reasonably shall deem necessary to protect its interests or those of the Indemnifying Party. After the Indemnifying Party shall retain such counselapplies), the Indemnified Party indemnifying party shall have the right to retain its own counselmonitor the Indemnitee’s defense, but settlement or other disposition of any Claim. With respect to any such third party claim relating solely to the fees payment of money damages and expenses which could not reasonably be expected to result in the Indemnitee becoming subject to injunctive or other relief or otherwise adversely affect the business of the Indemnitee in any manner, and as to which the indemnifying party shall have acknowledged in writing the obligation to indemnify the Indemnitee hereunder, the indemnifying party shall have the sole right to defend, settle or otherwise dispose of such counsel shall be Claim at the expense indemnifying party’s cost and using counsel reasonably satisfactory to the Indemnitee, on such terms as the indemnifying party, in its sole discretion, shall deem appropriate; provided that the indemnifying party must elect to assume the defense by providing written notice not more than 20 Business Days after its receipt of notice of the Claim. The indemnifying party shall obtain the written consent of the Indemnitee, which shall not be unreasonably withheld or delayed, prior to ceasing to defend, settling or otherwise disposing of any Claim if as a result thereof the Indemnitee could reasonably be expected to become subject to injunctive or other equitable relief or the business of the Indemnitee could reasonably be expected to be adversely affected in any manner. If the indemnifying party assumes the defense of any Claim, it shall keep the Indemnitee reasonably advised of the status of such Indemnified Party unless (x) the Indemnifying Party suit or proceeding and the Indemnified Party defense thereof and shall have mutually agreed to consider in good faith recommendations made by the retention Indemnitee with respect thereto. If the indemnifying party does not assume the defense of any Claim, the Indemnitee shall keep the indemnifying party reasonably advised of the status of such counsel suit or (y) proceeding and the named parties defense thereof and shall consider in good faith recommendations made by the indemnifying party with respect thereto. Each party shall cooperate with the other in the defense of any Claim as reasonably requested by the other party, including by furnishing the other party with such information as it may have with respect to such suit or proceeding (including copies of any impleaded partiessummons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same).
(b) include both Notwithstanding Section 9.05(a), with respect to any Claim by a third party against the Indemnifying Party and Company for which the Indemnified Party and representation of both parties Company intends to rely on a right to indemnification under this Agreement, the Company shall, if so requested by the same indemnifying party, (1) allow the indemnifying party to take sole conduct of the Claim in the name of the Company, and/or (2) use legal counsel would be inappropriate because a conflict or potential conflict exists between selected by the Indemnifying Party and the Indemnified Party which makes representation of both Parties inappropriate under applicable standards of professional conduct. The Indemnifying Party shall not, indemnifying party in connection with any proceedings or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one such firm for the Indemnified Party (except legal matters relating to the extent the Indemnified Party retained counsel to protect its (or the Indemnifying Party's) rights prior to the selection of counsel by the Indemnifying Party)relevant Claim. If requested by the Indemnifying Partyindemnifying party intends to assume the conduct of any such Claim (an “Assumed Claim”) it must notify the Company within 20 Business Days of receiving notice of the Company’s intention to rely on its right of indemnification under this Agreement. The indemnifying party shall have the sole right to defend, settle or otherwise dispose of an Assumed Claim at the Indemnified Party agrees indemnifying party’s cost, and shall not be required to cooperate with obtain the Indemnifying Party and its counsel in contesting consent of the Company before taking any claim or demand which the Indemnifying Party defends or, if appropriate and related to the Third Party Claim in question, in action (including making any counterclaim against payment) in respect of the Person asserting Assumed Claim. The indemnifying party shall keep the Third Party Company reasonably advised of the status of the Assumed Claim and shall consider in good faith the recommendations of the Company with respect thereto. The Company must not admit any liability or make or agree to any cross-complaint against payment or compromise in respect of any Person (other than the Indemnified Party or any of its Affiliates). A Assumed Claim or demand may not be settled by either party without first obtaining the prior written consent of the other party (which consent will not be unreasonably withheld or delayed) unless, as part of such settlement, the Indemnified Party shall receive a full and unconditional release reasonably satisfactory to the Indemnifying Party. Notwithstanding the foregoing, the Indemnifying Party shall not settle any claim without the prior written consent of the Indemnified Party if such Claim is not exclusively for monetary Damagesindemnifying party.
(ii) If the Indemnifying Party fails to notify the Indemnified Party that the Indemnifying Party desires to defend the Third Party Claim pursuant to the preceding paragraph 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 vigorously and diligently 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 (except as provided in the immediately preceding sentence) any settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying -------- ------- Party will, at the sole cost and expense of the Indemnifying Party, 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 paragraph, if the Indemnifying Party has notified the Indemnified Party 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 Party the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this paragraph or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in connection with such litigation. The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this paragraph, and the Indemnifying Party will bear its own costs and expenses with respect to such participation.
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