Notice of Claims; Procedure for Indemnification. (a) If an Indemnified Party believes that it has suffered or incurred any Loss and Expense, such Indemnified Party shall notify Lxxxxxx Xxxxxx, as the representative of the Shareholders (the “MPG Representative”), in writing describing such Loss and Expense, the amount thereof, if known, and the method of computation of such Loss and Expense, all with reasonable particularity and containing a reference to the provisions of this Agreement in respect of which such Loss and Expense shall have occurred. If any action at law or suit in equity is instituted by a third party with respect to which an Indemnified Party intends to claim any liability or expense as Loss and Expense under this Article 11, such Indemnified Party shall promptly notify the MPG Representative of such action or suit. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice or delay by an Indemnified Party in giving such notice unless, and then only to the extent that, the rights and remedies of MPG shall have been materially prejudiced as a result of the failure to give, or delay in giving, such notice. (b) If such indemnity shall arise from the claim of a third party, the Indemnified Party shall permit the MPG Representative to assume the defense of any such claim and any litigation resulting from such claim at the MPG Representative’s expense. Failure by the MPG Representative to notify an Indemnified Party of its election to defend any such claim or action by a third party within fourteen (14) days after notice thereof shall have been given to the MPG Representative shall be deemed a waiver of the right of the MPG Representative to defend such claim or action. (c) If the MPG Representative assumes the defense of such claim or litigation resulting therefrom, then counsel selected by the MPG Representative shall be subject to approval by the Indemnified Party (not to be unreasonably withheld). The obligations of MPG hereunder as to such claim shall include taking all steps necessary in the defense or settlement of such claim or litigation and holding the Indemnified Party harmless from and against any and all Losses or Expenses caused by or arising out of any settlement approved by the Indemnified Party or any judgment in connection with such claim or litigation. The MPG Representative shall keep the Indemnified Party fully informed of the status of such claims and litigation. The MPG Representative shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or a plaintiff of a release of the Indemnified Party from all liability in respect of such claim or which acts as an admission of a violation of any law, rule, regulation, ordinance, policy or order. Anything in this Article 11 to the contrary notwithstanding, the Indemnified Party may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation. (d) If the MPG Representative shall not assume the defense of any such claim by a third party or litigation resulting therefrom after receipt of notice from such Indemnified Party in accordance herewith, the Indemnified Party may defend against such claim or litigation in such manner as it reasonably deems appropriate, and unless there shall be deposited with the Indemnified Party a sum in cash, letter of credit or bond, equal to the total amount demanded in such claim or litigation plus the Indemnified Party’s reasonable estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may reasonably deem appropriate. The Indemnified Party shall inform the MPG Representative of the status of such claim or litigation from time to time upon the MPG Representative’s request, and, prior to settling such claim or litigation, the Indemnified Party shall advise the MPG Representative of the terms, provisions and conditions of any proposed settlement; provided, however, that the MPG Representative will not have any rights to accept, decline or modify the proposed settlement, nor to direct the Indemnified Party to do any of the foregoing. MPG shall promptly reimburse the Indemnified Party for the amount of such settlement and for all other Losses and Expenses reasonably incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation. The terms of such settlement shall be binding upon MPG and the MPG Representative and neither of them shall have any right to challenge such settlement. (e) MPG shall promptly pay to the third party the amount of any final and unappealable judgment rendered with respect to any claim by such third party in litigation and shall reimburse the Indemnified Party and for all other Losses and Expenses reasonably incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party. (f) Any payment pursuant to this Section 11.3 shall be made not later than thirty (30) days after receipt by the MPG Representative of written notice from the Indemnified Party stating the amount thereof and the indemnity payment requested. Any payment not made when due shall bear interest at a rate per annum equal to the Prime Rate plus 3% per annum for each day until paid. “Prime Rate” means the rate of interest as reported in The Wall Street Journal from time to time, changing as and when the Prime Rate changes.
Appears in 1 contract
Notice of Claims; Procedure for Indemnification. (a) 9.3.1 If an Indemnified Party believes that it has suffered or incurred any Loss and Expense, such Indemnified Party shall notify Lxxxxxx Xxxxxx, as the representative of the Shareholders (the “MPG Representative”), in writing describing such Loss and Expense, the amount thereof, if known, and the method of computation of such Loss and Expense, all with reasonable particularity and containing a reference to the provisions of this Agreement in respect of which such Loss and Expense shall have occurred. If any action at law or suit in equity is instituted by a third party with respect to which an Indemnified Party intends to claim any liability or expense as Loss and Expense under this Article 119, such Indemnified Party shall promptly notify the MPG Representative Shareholders of such action or suit. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice or delay by an Indemnified Party in giving such notice unless, and then only to the extent that, the rights and remedies of MPG the Shareholders' shall have been materially prejudiced as a result of the failure to give, or delay in giving, such notice.
(b) 9.3.2 If such indemnity shall arise from the claim of a third party, so long as the business of Acquisition is not impaired thereby and no person suffers any liability by reason thereof, the Indemnified Party shall permit the MPG Representative Shareholders to assume the defense of any such claim and any litigation resulting from such claim with counsel satisfactory to the Indemnified Party but at the MPG Representative’s Shareholders' expense. Failure by the MPG Representative Shareholders to notify an Indemnified Party of its election to defend any such claim or action by a third party within fourteen (14) days after notice thereof shall have been given to the MPG Representative Shareholders shall be deemed a waiver by Shareholders of the their right of the MPG Representative to defend such claim or action.
(c) 9.3.3 If the MPG Representative assumes Shareholders assume the defense of such claim or litigation resulting therefrom, then counsel selected by the MPG Representative Shareholders shall be subject to approval by the Indemnified Party (not to be unreasonably withheld)Party. The obligations of MPG hereunder as to such claim shall include taking all steps necessary in the defense or settlement of such claim or litigation and holding the Indemnified Party harmless from and against any and all Losses or Expenses caused by or arising out of any settlement approved by the Indemnified Party or any judgment in connection with such claim or litigation. The MPG Representative Shareholders shall keep the Indemnified Party fully informed of the status of such claims and litigation. The MPG Representative Shareholders shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the affected Indemnified Party Parties or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or a plaintiff of a release of the affected Indemnified Party Parties from all liability in respect of such claim or which acts as an admission by any Indemnified Party of a violation of any law, rule, regulation, ordinance, policy or order. Anything in this Article 11 9 to the contrary notwithstanding, the Indemnified Party may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
(d) 9.3.4 If the MPG Representative Shareholders shall not assume the defense of any such claim by a third party or litigation resulting therefrom after receipt of notice from such Indemnified Party in accordance herewith, the Indemnified Party may defend against such claim or litigation in such manner as it reasonably deems appropriate, and unless there the Shareholders shall be deposited deposit with the Indemnified Party a sum in cash, letter of credit or bond, bond equal to the total amount demanded in such claim or litigation plus the Indemnified Party’s 's reasonable estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may reasonably deem appropriate. The Indemnified Party shall inform , and the MPG Representative of the status of such claim or litigation from time to time upon the MPG Representative’s request, and, prior to settling such claim or litigation, the Indemnified Party shall advise the MPG Representative of the terms, provisions and conditions of any proposed settlement; provided, however, that the MPG Representative will not have any rights to accept, decline or modify the proposed settlement, nor to direct the Indemnified Party to do any of the foregoing. MPG Shareholders shall promptly reimburse the Indemnified Party for the amount of such settlement and for all other Losses and Expenses reasonably incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation. The terms of such settlement shall be binding upon MPG and the MPG Representative and neither of them shall have any right to challenge such settlement.
(e) MPG 9.3.5 Shareholders shall promptly pay to the third party the amount of any final and unappealable judgment rendered with respect to any claim by such third party in litigation and shall reimburse the Indemnified Party and for all other Losses and Expenses reasonably incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
(f) 9.3.6 Any payment pursuant to this Section 11.3 9.3 shall be made not later than thirty (30) days after receipt by the MPG Representative Shareholders of written notice from the Indemnified Party stating the amount thereof and the indemnity payment requested. Any payment not made when due shall bear interest at a rate per annum equal to the Prime Rate plus 3% per annum for each day until paid. “"Prime Rate” " means the Prime rate of interest as reported in The Wall Street Journal from time to time, changing as and when the Prime Rate changes.
Appears in 1 contract
Notice of Claims; Procedure for Indemnification. (a) If an Each Indemnified Party believes that it has suffered or incurred any Loss and Expense, such Indemnified entitled to indemnification pursuant to Section 9.1 shall give written notice to the Indemnifying Party shall notify Lxxxxxx Xxxxxx, as specifying in reasonable detail (i) the representative basis of the Shareholders claim as to which indemnity may be sought, and (the “MPG Representative”), in writing describing such Loss and Expense, the amount thereof, ii) if known, and the method aggregate amount of computation of such Loss and Expensethe Losses for which a claim is being made under Section 9.1 or, all with reasonable particularity and containing a reference to the provisions of this Agreement in respect of which such Loss and Expense shall have occurred. If any action at law or suit in equity is instituted by a third party with respect to which an Indemnified Party intends to claim any liability or expense as Loss and Expense under this Article 11, such Indemnified Party shall promptly notify the MPG Representative of such action or suit. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice or delay by an Indemnified Party in giving such notice unless, and then only to the extent thatthat the amount of such Losses is not known or has not been incurred at the time such claim is made, an estimate. Written notice to the rights and remedies of MPG shall have been materially prejudiced as a result Indemnifying Party of the failure to give, or delay in giving, such notice.
(b) If such indemnity shall arise from the claim existence of a third party, the Indemnified Party shall permit the MPG Representative to assume the defense of any such claim and any litigation resulting from such claim at the MPG Representative’s expense. Failure by the MPG Representative to notify an Indemnified Party of its election to defend any such claim or action by a third party within fourteen (14) days after notice thereof shall have been given to the MPG Representative shall be deemed a waiver of the right of the MPG Representative to defend such claim or action.
(c) If the MPG Representative assumes the defense of such claim or litigation resulting therefrom, then counsel selected by the MPG Representative shall be subject to approval given by the Indemnified Party (not to be unreasonably withheld). The obligations of MPG hereunder as to such claim shall include taking all steps necessary in the defense or settlement of such claim or litigation and holding soon as reasonably possible after the Indemnified Party harmless from and against any and all Losses or Expenses caused by or arising out of any settlement approved by the Indemnified Party or any judgment in connection with such claim or litigation. The MPG Representative shall keep the Indemnified Party fully informed of the status of such claims and litigation. The MPG Representative shall not, in the defense of such claim or any litigation resulting therefrom, consent has concluded that it is entitled to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or a plaintiff of a release of the Indemnified Party from all liability in respect of such claim or which acts as an admission of a violation of any law, rule, regulation, ordinance, policy or order. Anything in this Article 11 to the contrary notwithstanding, the Indemnified Party may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
(d) If the MPG Representative shall not assume the defense of any such claim by a third party or litigation resulting therefrom after receipt of notice from such Indemnified Party in accordance herewith, the Indemnified Party may defend against such claim or litigation in such manner as it reasonably deems appropriate, and unless there shall be deposited with the Indemnified Party a sum in cash, letter of credit or bond, equal to the total amount demanded in such claim or litigation plus the Indemnified Party’s reasonable estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may reasonably deem appropriate. The Indemnified Party shall inform the MPG Representative of the status of such claim or litigation from time to time upon the MPG Representative’s request, and, prior to settling such claim or litigation, the Indemnified Party shall advise the MPG Representative of the terms, provisions and conditions of any proposed settlementseek indemnification hereunder; provided, however, that the MPG Representative will Indemnified Party shall not have be foreclosed from seeking indemnification pursuant to this Article IX by any rights failure to acceptprovide such notice of the existence of a claim to the Indemnifying Party, decline or modify except to the proposed settlementextent the Indemnifying Party demonstrates that the defense of the action is prejudiced by the delay.
(b) In case any such action shall be brought against an Indemnified Party and such Indemnified Party gives notice to the Indemnifying Party of the commencement of the action, nor the Indemnifying Party shall be entitled to direct participate in the action at his own expense and, to the extent that they shall wish, to assume the defense of the action with counsel reasonably satisfactory to the Indemnified Party to do any of so long as the foregoing. MPG shall promptly reimburse Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the action and fulfill his indemnification obligations hereunder and the Indemnifying Party conducts the defense of the action actively and diligently. After notice from the Indemnifying Party to the Indemnified Party of his election so to assume the defense of the action, the Indemnifying Party shall control the defense of the action and shall not be liable to the Indemnified Party under Section 9.1 for the amount any fees of such settlement and for all other Losses and Expenses reasonably counsel or any other expenses subsequently incurred by the Indemnified Party in connection with the defense against of the action (it being understood, however, that the Indemnified Party shall be entitled to participate in the action at its own cost and expense). The Indemnifying Party and the Indemnified Party shall cooperate with each other in connection with any defense and in any notifications to insurers. If the Indemnifying Party assumes the defense of an action, no compromise or settlement of the action may be effected by the Indemnifying Party without the Indemnified Party’s consent, such claim consent not to be unreasonably withheld or litigationdelayed. The terms If notice is given to the Indemnifying Party of the commencement of any action and he does not, within 20 days after receipt of such settlement shall be binding upon MPG and the MPG Representative and neither of them shall have any right notice, give notice to challenge such settlement.
(e) MPG shall promptly pay to the third party the amount of any final and unappealable judgment rendered with respect to any claim by such third party in litigation and shall reimburse the Indemnified Party of his election to assume the defense of the action, the Indemnified Party: (i) shall control the defense of such action until and for all other Losses unless the Indemnifying Party gives written notice of his election to assume the defense of the action; and Expenses reasonably incurred (ii) may, with the consent of the Indemnifying party, such consent not to be unreasonably withheld or delayed, compromise or settle such action at the cost and expense of the Indemnifying Party, and the Indemnifying Party shall be bound by any determination made in such action or any compromise or settlement of the action effected by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third partyParty.
(f) Any payment pursuant to this Section 11.3 shall be made not later than thirty (30) days after receipt by the MPG Representative of written notice from the Indemnified Party stating the amount thereof and the indemnity payment requested. Any payment not made when due shall bear interest at a rate per annum equal to the Prime Rate plus 3% per annum for each day until paid. “Prime Rate” means the rate of interest as reported in The Wall Street Journal from time to time, changing as and when the Prime Rate changes.
Appears in 1 contract
Notice of Claims; Procedure for Indemnification. (a) If an ELC Indemnified Party or a Pxxxx Indemnified Party (in either case, an “Indemnified Party”) believes that it has suffered or incurred any Loss and Expense, such Indemnified Party shall notify Lxxxxxx Xxxxxx, as the representative of the Shareholders party obligated to provide indemnification (the “MPG RepresentativeIndemnifying Party”), ) in writing describing such Loss and Expense, the amount thereof, if known, and the method of computation of such Loss and Expense, all with reasonable particularity and containing a reference to the provisions of this Agreement in respect of which such Loss and Expense shall have occurred. If any action at law or suit in equity is instituted by a third party with respect to which an Indemnified Party intends to claim any liability or expense as Loss and Expense under this Article 11, such Indemnified Party shall promptly notify the MPG Representative Indemnifying Party of such action or suit. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice or delay by an Indemnified Party in giving such notice unless, and then only to the extent that, the rights and remedies of MPG the Indemnifying Party shall have been materially prejudiced as a result of the failure to give, or delay in giving, such notice.
(b) If such indemnity shall arise from the claim of a third party, the Indemnified Party shall permit the MPG Representative Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim with counsel satisfactory to the Indemnified Party but at the MPG RepresentativeIndemnifying Party’s expense. Failure by the MPG Representative Indemnifying Party to notify an Indemnified Party of its election to defend any such claim or action by a third party within fourteen thirty (1430) days after notice thereof shall have been given to the MPG Representative Indemnifying Party shall be deemed a waiver of the right of the MPG Representative Indemnifying Party to defend such claim or action. If a third party claim or proceeding requires a response sooner than the thirty (30) day period required for the Indemnifying Party to respond to the Indemnified Party, the Indemnified Party shall timely respond to the third party claim in a manner preserving all rights and denying any liability. Indemnifying Party shall not be deemed to have waived its rights to control defense of the claim hereunder if Indemnifying Party shall within the thirty (30) day period notify the Indemnified Party that the Indemnifying Party will take control of the defense of such claim.
(c) If the MPG Representative Indemnifying Party assumes the defense of such claim or litigation resulting therefrom, then counsel selected by the MPG Representative Indemnifying Party shall be subject to approval by the Indemnified Party (not to be unreasonably withheld). The obligations of MPG hereunder the Indemnifying Party as to such claim shall include taking all steps necessary in the defense or settlement of such claim or litigation and holding the Indemnified Party harmless from and against any and all Losses or Expenses caused by or arising out of any settlement approved by the Indemnified Party or any judgment in connection with such claim or litigation. The MPG Representative Indemnifying Party shall keep the Indemnified Party fully informed of the status of such claims and litigation. The MPG Representative Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party Party, not to be unreasonably withheld, or enter into any settlement (except with the written consent of the Indemnified Party, not to be unreasonably withheld) which does not include as an unconditional term thereof the giving by the claimant or a plaintiff of a release of the Indemnified Party from all liability in respect of such claim or which acts as an admission of a violation of any law, rule, regulation, ordinance, policy or order. Anything in this Article 11 to the contrary notwithstanding, the Indemnified Party may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
(d) If the MPG Representative Indemnifying Party shall not assume the defense of any such claim by a third party or litigation resulting therefrom after receipt of notice from such Indemnified Party in accordance herewith, the Indemnified Party may defend against such claim or litigation in such manner as it reasonably deems appropriate, and unless there shall be deposited with the Indemnified Party a sum in cash, letter of credit or bond, equal to the total amount demanded in such claim or litigation plus the Indemnified Party’s reasonable estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may reasonably deem appropriate. The Indemnified Party shall inform the MPG Representative Indemnifying Party of the status of such claim or litigation from time to time upon the MPG RepresentativeIndemnifying Party’s request, and, prior to settling such claim or litigation, the Indemnified Party shall advise the MPG Representative Indemnifying Party of the terms, provisions and conditions of any proposed settlement; provided, however, that the MPG Representative Indemnifying Party will not have any rights to accept, decline or modify the proposed settlement, nor to direct the Indemnified Party to do any of the foregoing. MPG The Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all other Losses and Expenses reasonably incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation. The terms of such settlement shall be binding upon MPG the Indemnifying Party and the MPG Representative and neither of them Indemnifying Party shall not have any right to challenge such settlement.
(e) MPG If the Indemnified Party refuses to consent, whether reasonably or unreasonably, to any settlement recommended by the Indemnifying Party then the Indemnifying Party shall be relieved of its obligation to provide a defense and the Indemnifying Party’s monetary liability for any settlement or judgment shall not exceed either the amount for which the matter could have been settled or the Indemnifying Party’s maximum liability, whichever is less. Notwithstanding anything to the contrary herein, without the consent of the Indemnified Party, the Indemnifying Party may settle or compromise any action, claim or proceeding or consent to entry of judgment with respect to any such action, claim or proceeding that requires solely the payment of money damages by the Indemnifying Party and that includes as an unconditional term thereof the release by the claimant or the plaintiff of the Indemnified Party from all liability in respect of such action, claim or proceeding.
(f) The Indemnifying Party shall promptly pay to the third party the amount of any final and unappealable judgment rendered with respect to any claim by such third party in litigation and shall reimburse the Indemnified Party and for all other Losses and Expenses reasonably incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
(fg) Any payment pursuant to this Section 11.3 11.4 shall be made not later than thirty (30) days after receipt by the MPG Representative Indemnifying Party of written notice from the Indemnified Party stating the amount thereof and the indemnity payment requested. Any payment not made when due shall bear interest at a rate per annum equal to the Prime Rate plus 3% per annum for each day until paid. “Prime Rate” means the rate of interest as reported in The Wall Street Journal from time to time, changing as and when the Prime Rate changes.
Appears in 1 contract
Notice of Claims; Procedure for Indemnification. (a) 11.3.1 If an Indemnified Party believes that it has suffered or incurred any Loss and Expense, such Indemnified Party shall notify Lxxxxxx Xxxxxx, as the representative of the Shareholders (the “MPG Representative”), in writing describing such Loss and Expense, the amount thereof, if known, and the method of computation of such Loss and Expense, all with reasonable particularity and containing a reference to the provisions of this Agreement in respect of which such Loss and Expense shall have occurred. If any action at law or suit in equity is instituted by a third party with respect to which an Indemnified Party intends to claim any liability or expense as Loss and Expense under this Article 11, such Indemnified Party shall promptly notify the MPG Representative Shareholders of such action or suit. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice or delay by an Indemnified Party in giving such notice unless, and then only to the extent that, the rights and remedies of MPG the Shareholders' shall have been materially prejudiced as a result of the failure to give, or delay in giving, such notice.
(b) 11.3.2 If such indemnity shall arise from the claim of a third party, the Indemnified Party shall permit the MPG Representative Shareholders to assume the defense of any such claim and any litigation resulting from such claim with counsel satisfactory to the Indemnified Party but at the MPG Representative’s Shareholders' expense. Failure by the MPG Representative Shareholders to notify an Indemnified Party of its election to defend any such claim or action by a third party within fourteen (14) days after notice thereof shall have been given to the MPG Representative Shareholders shall be deemed a waiver by Shareholders of the their right of the MPG Representative to defend such claim or action.
(c) 11.3.3 If the MPG Representative assumes Shareholders assume the defense of such claim or litigation resulting therefrom, then counsel selected by the MPG Representative Shareholders shall be subject to approval by the Indemnified Party (not to be unreasonably withheld). The obligations of MPG hereunder as to such claim shall include taking all steps necessary in the defense or settlement of such claim or litigation and holding the Indemnified Party harmless from and against any and all Losses or Expenses caused by or arising out of any settlement approved by the Indemnified Party or any judgment in connection with such claim or litigation. The MPG Representative shall keep the Indemnified Party fully informed of the status of such claims and litigation. The MPG Representative shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or a plaintiff of a release of the Indemnified Party from all liability in respect of such claim or which acts as an admission of a violation of any law, rule, regulation, ordinance, policy or order. Anything in this Article 11 to the contrary notwithstanding, the Indemnified Party may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
(d) If the MPG Representative shall not assume the defense of any such claim by a third party or litigation resulting therefrom after receipt of notice from such Indemnified Party in accordance herewith, the Indemnified Party may defend against such claim or litigation in such manner as it reasonably deems appropriate, and unless there shall be deposited with the Indemnified Party a sum in cash, letter of credit or bond, equal to the total amount demanded in such claim or litigation plus the Indemnified Party’s reasonable estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may reasonably deem appropriate. The Indemnified Party shall inform the MPG Representative of the status of such claim or litigation from time to time upon the MPG Representative’s request, and, prior to settling such claim or litigation, the Indemnified Party shall advise the MPG Representative of the terms, provisions and conditions of any proposed settlement; provided, however, that the MPG Representative will not have any rights to accept, decline or modify the proposed settlement, nor to direct the Indemnified Party to do any of the foregoing. MPG shall promptly reimburse the Indemnified Party for the amount of such settlement and for all other Losses and Expenses reasonably incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation. The terms of such settlement shall be binding upon MPG and the MPG Representative and neither of them shall have any right to challenge such settlement.
(e) MPG shall promptly pay to the third party the amount of any final and unappealable judgment rendered with respect to any claim by such third party in litigation and shall reimburse the Indemnified Party and for all other Losses and Expenses reasonably incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
(f) Any payment pursuant to this Section 11.3 shall be made not later than thirty (30) days after receipt by the MPG Representative of written notice from the Indemnified Party stating the amount thereof and the indemnity payment requested. Any payment not made when due shall bear interest at a rate per annum equal to the Prime Rate plus 3% per annum for each day until paid. “Prime Rate” means the rate of interest as reported in The Wall Street Journal from time to time, changing as and when the Prime Rate changes.Indemnified
Appears in 1 contract
Notice of Claims; Procedure for Indemnification. (a) If ELC or Acquisition receives notice of any claim of the types described in Sections 11.2(e) and (f), they shall, if practicable in the circumstances, afford the Stockholder the opportunity to defend such matter on the terms set forth in this Section 11.4, even if such matter has not yet given rise to any Loss or Expense. If any person or entity entitled to indemnification under this Article 11 (an “Indemnified Party Party”) believes that it has suffered or incurred any Loss and Expense, such Indemnified Party shall notify Lxxxxxx Xxxxxx, as the representative of the Shareholders applicable party or parties to this Agreement obligated to provide indemnification (the “MPG RepresentativeIndemnifier”), ) in writing describing such Loss and Expense, the amount thereof, if known, and the method of computation of such Loss and Expense, all with reasonable particularity and containing a reference to the provisions of this Agreement in respect of which such Loss and Expense shall have occurred. If any action at law or suit in equity is instituted by a third party with respect to which an Indemnified Party intends to claim any liability or expense as Loss and Expense under this Article 11, such Indemnified Party shall promptly notify the MPG Representative Indemnifier of such action or suit. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give such notice or delay by an Indemnified Party in giving such notice unless, and then only to the extent that, the rights and remedies of MPG the Indemnifier shall have been materially prejudiced as a result of the failure to give, or delay in giving, such notice.
(b) If such indemnity shall arise from the claim of a third party, the Indemnified Party shall permit the MPG Representative Indemnifier to assume the defense of any such claim and any litigation resulting from such claim with counsel satisfactory to the Indemnified Party but at the MPG RepresentativeIndemnifier’s expense. Failure by the MPG Representative Indemnifier to notify an Indemnified Party of its election to defend any such claim or action by a third party within fourteen (14) days after notice thereof shall have been given to the MPG Representative Indemnifier shall be deemed a waiver of the right of the MPG Representative Indemnifier to defend such claim or action.
(c) If the MPG Representative Indemnifier assumes the defense of such claim or litigation resulting therefrom, then counsel selected by the MPG Representative Indemnifier shall be subject to approval by the Indemnified Party (not to be unreasonably withheld). The obligations of MPG hereunder Indemnifier as to such claim shall include taking all steps necessary in the defense or settlement of such claim or litigation and holding the Indemnified Party harmless from and against any and all Losses or Expenses caused by or arising out of any settlement approved by the Indemnified Party or any judgment in connection with such claim or litigation. The MPG Representative Indemnifier shall keep the Indemnified Party fully informed of the status of such claims and litigation. The MPG Representative Indemnifier shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party or enter into any settlement (except with the written consent of the Indemnified Party) which does not include as an unconditional term thereof the giving by the claimant or a plaintiff of a release of the Indemnified Party from all liability in respect of such claim or which acts as an admission of a violation of any law, rule, regulation, ordinance, policy or order. Anything in this Article 11 to the contrary notwithstanding, the Indemnified Party may, with counsel of its choice and at its expense, participate in the defense of any such claim or litigation.
(d) If the MPG Representative Indemnifier shall not assume the defense of any such claim by a third party or litigation resulting therefrom after receipt of notice from such Indemnified Party in accordance herewith, the Indemnified Party may defend against such claim or litigation in such manner as it reasonably deems appropriate, and unless there shall be deposited with the Indemnified Party a sum in cash, letter of credit or bond, equal to the total amount demanded in such claim or litigation plus the Indemnified Party’s reasonable estimate of the costs of defending the same, the Indemnified Party may settle such claim or litigation on such terms as it may reasonably deem appropriate. The Indemnified Party shall inform the MPG Representative Indemnifier of the status of such claim or litigation from time to time upon the MPG RepresentativeIndemnifier’s request, and, prior to settling such claim or litigation, the Indemnified Party shall advise the MPG Representative Indemnifier of the terms, provisions and conditions of any proposed settlement; provided, however, that the MPG Representative Indemnifier will not have any rights to accept, decline or modify the proposed settlement, nor to direct the Indemnified Party to do any of the foregoing. MPG The Indemnifier shall promptly reimburse the Indemnified Party for the amount of such settlement and for all other Losses and Expenses reasonably incurred by the Indemnified Party in connection with the defense against or settlement of such claim or litigation. The terms of such settlement shall be binding upon MPG the Indemnifier and the MPG Representative and neither of them Indemnifier shall not have any right to challenge such settlement.
(e) MPG The Indemnifier shall promptly pay to the third party the amount of any final and unappealable judgment rendered with respect to any claim by such third party in litigation and shall reimburse the Indemnified Party and for all other Losses and Expenses reasonably incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
(f) Any payment pursuant to this Section 11.3 11.4 shall be made not later than thirty (30) days after receipt by the MPG Representative Indemnifier of written notice from the Indemnified Party stating the amount thereof and the indemnity payment requested. Any payment not made when due shall bear interest at a rate per annum equal to the Prime Rate plus 3% per annum for each day until paid. “Prime Rate” means the rate of interest as reported in The Wall Street Journal from time to time, changing as and when the Prime Rate changes.
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