Notice, Settlements and Other Matters. (a) A party seeking indemnification pursuant to Section 9.2 or 9.3 (an “Indemnified Party”) must give prompt written notice to the party from whom such indemnification is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any action or proceeding, in respect of which indemnity may be sought hereunder specifying in reasonable detail the individual items of the Losses in respect of which indemnification is sought including the amount, the date each such item was paid, incurred or properly accrued, and the specific details of the breach of representation, warranty or covenant or other claim or matter to which such item is related. In the event that any third party claim is made against the Indemnified Party and the Indemnified Party notifies the Indemnifying Party of the commencement thereof, the Indemnifying Party may elect at any time to negotiate a settlement or a compromise of such action or claim or to defend such action or claim, in each case at its sole cost and expense (subject to the limitations set forth in Section 9.2, if the Parent is the Indemnifying Party, or Section 9.3, if the Purchaser is the Indemnifying Party) and with its own counsel. If, within thirty (30) days of receipt from an Indemnified Party of the notice referred to above the Indemnifying Party (i) advises the Indemnified Party in writing that it shall not elect to defend, settle or otherwise compromise or pay such action or claim or (ii) fails to make such an election in writing, the Indemnified Party may (subject to the Indemnifying Party’s continuing right of election in the preceding sentence), at its option, defend, settle, compromise or pay such action or claim; provided that any such settlement or compromise shall be permitted hereunder only with the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. Unless and until the Indemnifying Party makes an election in accordance with this Section to defend, settle, compromise or pay such action or claim, all of the Indemnified Party’s reasonable costs arising out of the defense, settlement, compromise or payment thereof shall be Losses subject to indemnification by the Indemnifying Party (subject to the provisions and limitations of Sections 9.2 and 9.3, as applicable). Each Indemnified Party shall make available to the Indemnifying Party all information reasonably available to such Indemnified Party relating to such action or claim. If the Indemnifying Party elects to defend any such action or claim, the Indemnified Party may participate in such defense with counsel of its choice at the Indemnified Party’s sole cost and expense. If the Indemnifying Party elects to assume the defense of (or otherwise elects to negotiate, settle or compromise) any action or claim as described above, the Indemnified Party shall reimburse the Indemnifying Party for all costs and expenses incurred by the Indemnifying Party in connection with such defense to the extent such costs and expenses do not total an amount indemnifiable pursuant to Section 9.2 or Section 9.3, as applicable.
Appears in 2 contracts
Samples: Purchase, Sale and Servicing Transfer Agreement (Neiman Marcus, Inc.), Purchase, Sale and Servicing Transfer Agreement (Neiman Marcus Group Inc)
Notice, Settlements and Other Matters. (a) A party seeking indemnification pursuant to Section 9.2 or Section 9.3 (an “Indemnified Party”) must give prompt written notice to the party from whom such indemnification is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any action or proceedingAction, which notice shall describe in reasonable detail the issue in respect of which indemnity may be sought hereunder specifying in reasonable detail hereunder. Notwithstanding the individual items foregoing, the failure of the Losses Indemnified Party to furnish the written notice referred to in respect of which the preceding sentence in a prompt manner shall not affect its right to indemnification to the extent the Indemnifying Party’s ability to defend the matter is sought including the amount, the date each not materially prejudiced by such item was paid, incurred or properly accrued, and the specific details of the breach of representation, warranty or covenant or other claim or matter failure to which such item is relatedgive prompt notice. In the event that any third party claim is made against the Indemnified Party and the Indemnified Party notifies the Indemnifying Party of the commencement thereof, the Indemnifying Party may elect at any time to negotiate a settlement or a compromise of such action or claim Action or to defend such action or claimAction, in each case at its sole cost and expense (subject to the limitations set forth in Section 9.2, if the Parent is Sellers are the Indemnifying Party, or Section 9.3, if the Purchaser is the Indemnifying Party) and with its own counsel; provided, that (i) such Action is not a matter involving criminal liability, (ii) the third party is not seeking non-monetary relief and such compromise or settlement shall only be for monetary relief (all of which shall be paid by the Indemnifying Party) without admission of wrongdoing and cannot include any injunctive or equitable relief without the consent of the Indemnified Party and shall include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto, (iii) to the extent that such compromise or settlement could have an adverse effect on the Purchaser, an Affiliate of the Purchaser, or the Acquired Assets or Assumed Liabilities with respect to a period (or portion thereof) beginning on the Closing Date, the Sellers shall not settle or compromise any such proceeding without the prior written consent of the Purchaser, and (iv) to the extent that such compromise or settlement could have an adverse effect on the Sellers, the Parent or an Affiliate of the Sellers or the Parent with respect to a period (or portion thereof) beginning on the Closing Date, the Purchaser shall not settle or compromise any such proceeding without the prior written consent of the Sellers and the Parent. Following any election by the Indemnifying Party to assume the defense of any such action or claim, the Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at its own expense unless the Indemnified Party reasonably concludes that representation of both parties by the same counsel would be inappropriate due to an actual or potential conflict of interest between them. If, within thirty (30) days of receipt from an Indemnified Party of the notice referred to above the Indemnifying Party (iA) advises the Indemnified Party in writing that it shall will not elect to defend, settle or otherwise compromise or pay such action or claim Action or (iiB) fails to make such an election in writing, the Indemnified Party may (subject to the Indemnifying Party’s continuing right of election in the preceding sentence), at its option, defend, settle, compromise or pay such action or claimAction; provided provided, that any such settlement or compromise shall be permitted hereunder only with the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. Unless and until the Indemnifying Party makes an election in accordance with this Section to defend, settle, compromise or pay such action or claim, all of the Indemnified Party’s reasonable costs arising out of the defense, settlement, compromise or payment thereof shall will be Losses subject to indemnification by the Indemnifying Party (subject to the provisions and limitations of Sections 9.2 and 9.3, as applicable). Each Indemnified Party shall make available to the Indemnifying Party all information reasonably available to such Indemnified Party relating to such action or claimAction. If the Indemnifying Party elects to defend any such action or claimAction, the Indemnified Party may participate in such defense with counsel of its choice choice, which shall be at the Indemnified Party’s sole cost and expense. If expense unless the Indemnified Party reasonably concludes that representation of both parties by the same counsel would be inappropriate due to an actual or potential conflict of interest between them.
(b) The Indemnified Party will have the right to reject any settlement approved by the Indemnifying Party elects if the Indemnified Party concludes in its reasonable good faith judgment that it is not fully and unconditionally released from any liability resulting from that claim or is required to pay any costs, expenses or damages to any Person as a result of the Action that are not covered by the indemnity provided herein. In the event the Indemnified Party rejects any such settlement, the Indemnifying Party’s obligations shall remain outstanding without modification. The Indemnified Party will not have the right to settle any third party Action without the written consent of the Indemnifying Party if the Indemnifying Party is contesting such Action in good faith and has assumed the defense of such Action from the Indemnified Party or if the period for determining whether or not to assume the defense of such Action from the Indemnified Party has not expired.
(c) In calculating the amount of any Losses of an Indemnified Party under this Article IX, there will be subtracted the amount of any (i) insurance proceeds (net of Taxes actually incurred and net of any increased premiums, deductibles or otherwise elects other costs incurred relating to negotiatethe receipt of such proceeds and attributable solely to any such Loss or Losses, settle and as certified by an officer of the Indemnified Party), other than proceeds received through self-insurance or compromiseinsurance provided by Affiliates of such Indemnified Party, actually received by the Indemnified Party with respect to such Losses and (ii) third-party payments actually received by the Indemnified Party with respect to such Losses (net of Taxes actually incurred), in each case without imposing any action obligation on the Indemnified Party to pursue any insurance claim or claim as described any such receipt of such proceeds or payments referred to in clause (i) or (ii). In the event that the Indemnifying Party reimburses the Indemnified Party for any Losses prior to the occurrence of any events contemplated by clauses (i) or (ii) above, the Indemnified Party shall reimburse will remit to the Indemnifying Party for all costs and expenses incurred by any such amounts that the Indemnified Party subsequently receives or realizes with respect to such Losses. Upon the payment in full of any claim hereunder, the Indemnifying Party will be subrogated to the rights of the Indemnified Party against any Person with respect to the subject matter of such claim.
(d) Without limitation of their respective rights and obligations as set forth elsewhere in connection this Article IX, and subject to the procedures for indemnification claims set forth in this Article IX, each Indemnifying Party and Indemnified Party will act in good faith, and each Indemnified Party will use commercially reasonable efforts to mitigate any Losses indemnifiable hereunder, will use similar discretion in the use of personnel and the incurring of expenses as each Indemnifying Party would use if they were engaged and acting entirely at their own cost and for their own account, and will consult regularly with such defense each Indemnifying Party regarding the conduct of any Actions or the taking of any action for which indemnification may be sought.
(e) The Sellers and the Purchaser agree to treat and report all indemnity payments as additional adjustments to the amount of the total consideration paid for the Acquired Assets for all Tax purposes unless required by applicable Requirements of Law.
(f) Notwithstanding anything to the contrary contained herein, in no event shall any Losses for which any Person is entitled to indemnification provided for herein cover, and in no event shall any party hereto be liable for Losses that include, any indirect damages, including consequential, incidental, exemplary or special damages, or punitive damages (except to the extent necessary to reimburse an Indemnified Party for judgments or awards actually awarded to third parties in respect of such costs types of damages).
(g) After the Closing Date, other than as provided in Section 2.4 or the Credit Card Program Agreement, and expenses do except with respect to claims based on fraud and/or claims seeking equitable remedies, this Article IX will constitute the Sellers’ and the Purchaser’s (and their respective Affiliates’, including Parent’s) exclusive remedy for any of the matters addressed herein or other claim arising out of or relating to this Agreement. For the avoidance of doubt, if the Closing does not total an amount indemnifiable pursuant occur, this Article IX shall not apply and the parties shall have the rights and remedies specified in Section 8.2.
(h) The rights to Section 9.2 indemnification, reimbursement or Section 9.3any other remedy based on representations, as applicablewarranties, covenants and agreements in this Agreement shall not be affected by any investigation conducted at any time or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant or agreement.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Target Corp)
Notice, Settlements and Other Matters. (a) A party seeking indemnification pursuant to Section 9.2 9.2(a) or 9.3 9.2(b) (an “"Indemnified Party”") must give prompt written notice to the party Party from whom such indemnification is sought (the “"Indemnifying Party”") of the assertion of any claim, or the commencement of any action or proceeding, in respect of which indemnity may be sought hereunder specifying in reasonable detail the individual items of the Losses in respect of which indemnification is sought including the amounthereunder; provided, that, the date each failure to give such item was paidnotice shall not relieve the Indemnifying Party from its obligations under this Article IX except to the extent that the Indemnified Party's ability to defend such claim, incurred action or properly accrued, and the specific details of the breach of representation, warranty or covenant or other claim or matter to which such item is relatedproceeding has been materially prejudiced thereby. In the event that any third party claim is made against the Indemnified Party and the Indemnified Party notifies the Indemnifying Party of the commencement thereof, the Indemnifying Party may elect at any time to negotiate a settlement or a compromise of such action or claim or to defend such action or claim, in each case at its sole cost and expense (subject to the limitations set forth in Section 9.2, if the Parent is the Indemnifying Party, or Section 9.3, if the Purchaser is the Indemnifying Party9.2(a)) and with its own counsel. If, within thirty (30) days of receipt from an Indemnified Party of the notice referred to above above, the Indemnifying Party (i) advises the Indemnified Party in writing that it shall will not elect to defend, settle or otherwise compromise or pay such action or claim or (ii) fails to make such an election in writing, the Indemnified Party may (subject to the Indemnifying Party’s 's continuing right of election in the preceding sentence), at its option, defend, settle, compromise or pay such action or claim; provided that provided, that, any such settlement or compromise shall be permitted hereunder only with the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. Unless and until the Indemnifying Party makes an election in accordance with this Section to defend, settle, compromise or pay such action or claim, all of the Indemnified Party’s 's reasonable costs arising out of the defense, settlement, compromise or payment thereof shall will be Losses subject to indemnification by the Indemnifying Party (subject to the provisions and limitations of Sections 9.2 and 9.3, as applicableSection 9.2(a)). Each Indemnified Party shall make available to the Indemnifying Party all information reasonably available to such Indemnified Party relating to such action or claim. If the Indemnifying Party elects to defend any such action or claim, the Indemnified Party may participate in such defense with counsel of its choice at the Indemnified Party’s 's sole cost and expense. If .
(b) The Indemnified Party will have the right to reject any settlement approved by the Indemnifying Party elects if the Indemnified Party concludes in its reasonable good faith judgment that it is not fully and unconditionally released from any liability resulting from the claim or is required to pay any costs, expenses or damages to any Person as a result of the claim that are not covered by the indemnity provided herein. In the event the Indemnified Party rejects any such settlement, the Indemnifying Party's obligation shall remain outstanding without modification. The Indemnified Party will not have the right to settle any third party claim without the written consent of the Indemnifying Party if the Indemnifying Party is contesting such claim in good faith and has assumed the defense of such claim from the Indemnified Party or if the period for determining whether or not to assume the defense of such claim from the Indemnified Party has not expired.
(c) In calculating the amount of any Losses of an Indemnified Party under this Article IX, there will be subtracted the amount of any (1) insurance proceeds realized by the Indemnified Party with respect to such Losses and (2) third-party payments actually received by the Indemnified Party with respect to such Losses. In the event that the Indemnifying Party reimburses the Indemnified Party for any Losses prior to the occurrence of any events contemplated by clauses (1) or otherwise elects to negotiate, settle or compromise(2) any action or claim as described above, the Indemnified Party shall reimburse will remit to the Indemnifying Party for all costs and expenses incurred any such amounts that the Indemnified Party subsequently receives or realizes with respect to such Losses. Upon the payment in full of any claim hereunder (whether by compromise or otherwise), the Indemnifying Party will be subrogated to the rights of the Indemnified Party against any Person with respect to the subject matter of such claim.
(d) Without limitation of their respective rights and obligations as set forth elsewhere in connection this Article IX, and subject to the procedures for indemnification claims set forth in this Article IX, the Parent and any of the Parent Affiliates or the Purchasers and any of their Affiliates as an Indemnified Party, as the case may be, will act in good faith, will use commercially reasonable efforts to mitigate any Losses, will use similar discretion in the use of personnel and the incurring of expenses as the Indemnifying Party would use if they were engaged and acting entirely at their own cost and for their own account, and will consult regularly with such defense the Indemnifying Party regarding the conduct of any proceedings or the taking of any action for which indemnification may be sought.
(e) The Parent and the Purchasers agree to treat all indemnity payments as adjustments to the amount of the total consideration paid for the Interests or the Transferred Assets for all Tax purposes to the extent permitted by law.
(f) Notwithstanding anything to the contrary contained herein, the indemnification provided for herein shall not cover, and in no event shall any Party hereto be liable for, any indirect damages or Losses, including lost profits or opportunities, or any consequential, incidental, exemplary or special damages, or punitive damages (except to the extent necessary to reimburse an Indemnified Party for judgments actually awarded to third parties in respect of such costs types of damages).
(g) After the Closing, except as otherwise provided in Section 6.4, Section 6.11, Section 6.14 and expenses do not total an amount indemnifiable pursuant 6.17 hereof, this Article IX will constitute the Parent's and the Purchaser's (and their respective Affiliates') exclusive remedy for any of the matters addressed herein or other claim arising out of or relating to Section 9.2 or Section 9.3this Agreement, as applicableother than fraud.
Appears in 2 contracts
Samples: Purchase Agreement (TRM Corp), Purchase Agreement (Efunds Corp)
Notice, Settlements and Other Matters. (a) A party seeking indemnification pursuant to Section 9.2 or 9.3 (an “Indemnified Party”) must give prompt written notice to the party from whom such indemnification is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any action or proceedingAction, in respect of which indemnity may be sought hereunder specifying in reasonable detail the individual items of the such Losses in respect of which indemnification is sought including the amount, the date each such item was paid, incurred or properly accruedaccrued or arose, and the specific details of the breach of representation, warranty or covenant or other claim or matter to which such item is related. Notwithstanding the foregoing, the failure of the Indemnified Party to furnish the written notice referred to in the preceding sentence in a prompt manner shall not affect its right to indemnification to the extent the Indemnifying Party’s right to defend the matter is not materially prejudiced by such failure to give prompt notice. In the event that any third party claim is made against the Indemnified Party and the Indemnified Party notifies the Indemnifying Party of the commencement thereof, the Indemnifying Party may elect at any time to negotiate a settlement or a compromise of such action or claim Action or to defend such action or claimAction, in each case at its sole cost and expense (subject to the limitations set forth in Section 9.2, if the Parent Seller is the Indemnifying Party, or Section 9.3, if the Purchaser is the Indemnifying Party) and with its own counsel. If, within thirty (30) days of receipt from an Indemnified Party of the notice referred to above the Indemnifying Party (i) advises the Indemnified Party in writing that it shall will not elect to defend, settle or otherwise compromise or pay such action or claim Action or (ii) fails to make such an election in writing, the Indemnified Party may (subject to the Indemnifying Party’s continuing right of election in the preceding sentence), at its option, defend, settle, compromise or pay such action or claimAction; provided that any such settlement or compromise shall be permitted hereunder only with the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. Unless and until the Indemnifying Party makes an election in accordance with this Section to defend, settle, compromise or pay such action or claim, all of the Indemnified Party’s reasonable costs arising out of the defense, settlement, compromise or payment thereof shall will be Losses subject to indemnification by the Indemnifying Party (subject to the provisions and limitations of Sections 9.2 and 9.3, as applicable). Each Indemnified Party shall make available to the Indemnifying Party all information reasonably available to such Indemnified Party relating to such action or claimAction. If the Indemnifying Party elects to defend any such action or claimAction, the Indemnified Party may participate in such defense with counsel of its choice at the Indemnified Party’s sole cost and expense. If the Indemnifying Party elects to assume the defense of (or otherwise elects to negotiate, settle or compromise) any action or claim Action as described above, the Indemnified Party shall will reimburse the Indemnifying Party for all costs and expenses incurred by the Indemnifying Party in connection with such defense to the extent such costs and expenses do not total an amount indemnifiable pursuant to Section 9.2 or Section 9.3, as applicable.
(b) The Indemnified Party will have the right to reject any settlement approved by the Indemnifying Party if the Indemnified Party is not fully released from any liability resulting from that claim or is required to pay any costs, expenses or damages to any Person as a result of the Action that are not covered by the indemnity provided herein. The Indemnified Party will not have the right to settle any third party Action without the written consent of the Indemnifying Party if the Indemnifying Party is contesting such Action in good faith and has assumed the defense of such Action from the Indemnified Party or if the period for determining whether or not to assume the defense of such Action from the Indemnified Party has not expired.
(c) In calculating the amount of any Losses of an Indemnified Party under this Article IX, there will be subtracted the amount of any (i) insurance proceeds (net of Taxes actually incurred, and other than proceeds received through self-insurance or insurance provided by Affiliates of such Indemnified Party) actually received by the Indemnified Party with respect to such Losses and (ii) third-party payments actually received by the Indemnified Party respect to such Losses. In the event that the Indemnifying Party reimburses the Indemnified Party for any Losses prior to the occurrence of any events contemplated by clause (i) or (ii) above, the Indemnified Party will remit to the Indemnifying Party any such amounts that the Indemnified Party subsequently receives or realizes with respect to such Losses. Upon the payment in full of any claim hereunder, the Indemnifying Party will be subrogated to the rights of the Indemnified Party against any Person with respect to the subject matter of such claim.
(d) Without limitation of their respective rights and obligations as set forth elsewhere in this Article IX, and subject to the procedures for indemnification claims set forth in this Article IX, the Indemnified Party will act in good faith, will use commercially reasonable efforts to mitigate any Losses, will use similar discretion in the use of personnel and the incurring of expenses as the Indemnifying Party would use if they were engaged and acting entirely at their own cost and for their own account, and will consult regularly with the Indemnifying Party regarding the conduct of any Actions or the taking of any action for which indemnification may be sought.
(e) Notwithstanding anything to the contrary contained herein, the indemnification provided for herein shall not cover, and in no event shall any party hereto be liable for, any indirect damages, including consequential, incidental, exemplary or special damages, or punitive damages (except to the extent necessary to reimburse an Indemnified Party for judgments actually awarded to third parties in respect of such types of damages).
(f) After the Closing Date, other than as provided in Section 2.4 and except with respect to claims based on fraud or seeking equitable remedies, this Article IX will constitute the Seller’s and the Purchaser’s exclusive remedy for any of the matters addressed herein or other claim arising out of or relating to this Agreement.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Residential Capital, LLC)
Notice, Settlements and Other Matters. (a) A party seeking indemnification pursuant to Section 9.2 8.2 or 9.3 Section 8.3 (an “Indemnified Party”) must give prompt written notice to the party from whom such indemnification is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any action or proceeding, in respect of which indemnity may be sought hereunder specifying in reasonable detail the individual items of the Losses in respect of which indemnification is sought including the amount, the date each such item was paid, incurred or properly accrued, and the specific details of the breach of representation, warranty or covenant or other claim or matter to which such item is related. In the event that any third party claim is made against the Indemnified Party and the Indemnified Party notifies the Indemnifying Party of the commencement thereof, the Indemnifying Party may elect at any time to negotiate a settlement or a compromise of such action or claim or to defend such action or claim, in each case at its sole cost and expense (subject to the limitations set forth in Section 9.28.2, if the Parent Seller is the Indemnifying Party, or Section 9.38.3, if the Purchaser is the Indemnifying Party) and with its own counsel. If, within thirty (30) days of receipt from an Indemnified Party of the notice referred to above above, the Indemnifying Party (i) advises the Indemnified Party in writing that it shall not elect to defend, settle or otherwise compromise or pay such action or claim or (ii) fails to make such an election in writing, the Indemnified Party may (subject to the Indemnifying Party’s continuing right of election in the preceding sentence), at its option, defend, settle, compromise or pay such action or claim; provided that any such settlement or compromise shall be permitted hereunder only with the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. Unless and until the Indemnifying Party makes an election in accordance with this Section to defend, settle, compromise or pay such action or claim, all of the Indemnified Party’s reasonable costs arising out of the defense, settlement, compromise or payment thereof shall be Losses subject to indemnification by the Indemnifying Party (subject to the provisions and limitations of Sections 9.2 8.2 and 9.38.3, as applicable). Each Indemnified Party shall make available to the Indemnifying Party all information reasonably available to such Indemnified Party relating to such action or claim. If the Indemnifying Party elects to defend any such action or claim, the Indemnified Party may participate in such defense with counsel of its choice at the Indemnified Party’s sole cost and expense. If .
(b) The Indemnified Party shall have the right to reject any settlement proposed by the Indemnifying Party elects if the Indemnified Party is not fully and unconditionally released from any liability resulting from that claim or is required to pay any costs, expenses or damages to any person as a result of the claim that are not covered by the indemnity provided herein. The Indemnified Party shall not have the right to settle any third party claim without the written consent of the Indemnifying Party if the Indemnifying Party is contesting such claim in good faith and has assumed the defense of such claim from the Indemnified Party or if the period for determining whether or not to assume the defense of such claim from the Indemnified Party has not expired.
(or otherwise elects c) In calculating the amount of any Losses of an Indemnified Party under this Article VIII, there shall be subtracted the amount of any (1) Tax benefits actually realized by the Indemnified Party with respect to negotiatesuch Losses, settle or compromise(2) insurance proceeds and third-party payments actually received by the Indemnified Party with respect to such Losses and (3) any action merchant charge-backs that would be permissible under the operating rules in effect at that time (whether or claim as described not such charge-back was actually made), and there shall be added the amount of any related Tax costs or other expenses. In the event that the Indemnifying Party reimburses the Indemnified Party for any Losses prior to the realization or receipt of any proceeds, benefits, payments, charge-backs contemplated by clauses (1), (2) or (3) above, the Indemnified Party shall reimburse remit to the Indemnifying Party for all any such amounts that the Indemnified Party subsequently receives or realizes with respect to such Losses (net of any related Tax costs and or other expenses incurred by the Indemnifying Party in connection with such defense to the extent such costs amounts were not previously taken into account). Upon the payment of any claim hereunder, the Indemnifying Party shall be subrogated to the extent of such payment to the rights of the Indemnified Party against any person with respect to the subject matter of such claim.
(d) Without limitation of their respective rights and obligations as set forth elsewhere in this Article VIII, and subject to the procedures for indemnification claims set forth in this Article VIII, the Indemnified Party shall act in good faith, shall use commercially reasonable efforts to mitigate any Losses (including by seeking to fully realize or receive any proceeds, benefits, payments, or charge-backs contemplated by clauses (1), (2) and (3) of Section 8.4(c)), shall use similar discretion in the use of personnel and the incurring of expenses do as the Indemnified Party would use if it were engaged and acting entirely at its own cost and for its own account, and shall consult regularly with the Indemnifying Party with respect to all its matters of interest to the Indemnifying Party under this Article VIII.
(e) All indemnity payments shall be treated as additional adjustments to the amount of the total consideration paid for the Purchased Assets and the Business for all Tax purposes.
(f) Notwithstanding anything to the contrary contained herein, the indemnification provided for herein shall not total an amount indemnifiable pursuant cover, and in no event shall any party hereto be liable for, any indirect damages, including consequential, incidental, exemplary or special damages, or punitive damages.
(g) After the Closing Date, Article VII and this Article VIII shall constitute the Seller’s and the Purchaser’s exclusive remedy for any of the matters addressed herein or other claim arising out of or relating to Section 9.2 this Agreement; provided, however, that this provision shall not impair the ability of either party to obtain specific performance or Section 9.3, as applicableother equitable relief.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pier 1 Imports Inc/De)
Notice, Settlements and Other Matters. (a) A party seeking indemnification pursuant to Section 9.2 or Section 9.3 (an the “Indemnified Party”) must give prompt written notice to the party from whom such indemnification is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any action or proceedingAction, in respect of which indemnity may be sought hereunder specifying in reasonable detail the individual items of the such Losses in respect of which indemnification is sought including the amount, the date each such item was paid, incurred or properly accruedaccrued or arose, and the specific details of the breach of representation, warranty or covenant or other claim or matter to which such item is related. Notwithstanding the foregoing, the failure of the Indemnified Party to furnish the written notice referred to in the preceding sentence in a prompt manner shall not effect its right to indemnification to the extent the Indemnifying Party’s right to defend the matter is not materially prejudiced by such failure to give prompt notice. In the event that any third party claim Action is made against the Indemnified Party and the Indemnified Party notifies the Indemnifying Party of the commencement thereof, the Indemnifying Party may elect at any time to negotiate a settlement or a compromise of such action or claim Action or to defend such action or claimAction, in each case at its sole cost and expense (subject to the limitations set forth in Section 9.2, if the Parent Seller is the Indemnifying Party, or Section 9.3, if the Purchaser is the Indemnifying Party) and with its own counsel. If, within thirty (30) 30 days of receipt from an Indemnified Party of the notice referred to above the Indemnifying Party (i) advises the Indemnified Party in writing that it shall will not elect to defend, settle or otherwise compromise or pay such action or claim Action, or (ii) fails to make such an election in writingwriting within such time-frame, the Indemnified Party may (subject to the Indemnifying Party’s continuing right of election in the preceding sentence), at its option, defend, settle, compromise or pay such action or claimAction; provided provided, however, that any such settlement or compromise shall be permitted hereunder only with the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. Unless and until the Indemnifying Party makes an election in accordance with this Section to defend, settle, compromise or pay such action or claimAction, all of the Indemnified Party’s reasonable costs arising out of the defense, settlement, compromise or payment thereof shall will be Losses subject to indemnification by the Indemnifying Party (subject to the provisions and limitations of Sections Section 9.2 and Section 9.3, as applicable). Each Indemnified Party shall make available to the Indemnifying Party all information reasonably available to such Indemnified Party relating to such action or claimAction. If the Indemnifying Party elects to defend any such action or claimAction, the Indemnified Party may participate in such defense with counsel of its choice at the Indemnified Party’s sole cost and expense. If the Indemnifying Party elects to assume the defense of (or otherwise elects to negotiate, settle or compromise) any action or claim Action as described above, the Indemnified Party shall will reimburse the Indemnifying Party for all costs and expenses incurred by the Indemnifying Party in connection with such defense to the extent such costs and expenses do not total an amount indemnifiable pursuant to Section 9.2 or Section 9.3, as applicable.
Appears in 1 contract
Notice, Settlements and Other Matters. (a) A party seeking indemnification pursuant to Section 9.2 or Section 9.3 (an “Indemnified Party”) must give prompt written notice to the party from whom such indemnification is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any action or proceedingAction, which notice shall describe in reasonable detail the issue in respect of which indemnity may be sought hereunder specifying in reasonable detail hereunder. Notwithstanding the individual items foregoing, the failure of the Losses Indemnified Party to furnish the written notice referred to in respect of which the preceding sentence in a prompt manner shall not affect its right to indemnification to the extent the Indemnifying Party’s ability to defend the matter is sought including the amount, the date each not materially prejudiced by such item was paid, incurred or properly accrued, and the specific details of the breach of representation, warranty or covenant or other claim or matter failure to which such item is relatedgive prompt notice. In the event that any third party claim is made against the Indemnified Party and the Indemnified Party notifies the Indemnifying Party of the commencement thereof, the Indemnifying Party may elect at any time to negotiate a settlement or a compromise of such action or claim Action or to defend such action or claimAction, in each case at its sole cost and expense (subject to the limitations set forth in Section 9.2, if the Parent Nordstrom is the Indemnifying Party, or Section 9.3, if the Purchaser is the Indemnifying Party) and with its own counsel; provided, that such settlement or compromise shall require consent of the Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed) if (i) such Action is a matter involving criminal liability, (ii) such Action is a class action, (iii) the settlement or compromise includes an admission of wrongdoing by the Indemnified Party or contemplates any notices to or communication with any Shopper or injunctive or equitable relief or (iv) such settlement or compromise does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto (other than the Losses indemnifiable by the Indemnifying Party). Following any election by the Indemnifying Party to assume the defense of any such action or claim, the Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at its own expense unless the Indemnified Party reasonably concludes that representation of both parties by the same counsel would be inappropriate due to an actual or potential conflict of interest between them. If, within thirty (30) days of receipt from an Indemnified Party of the notice referred to above above, the Indemnifying Party (iA) advises the Indemnified Party in writing that it shall will not elect to defend, settle or otherwise compromise or pay such action or claim Action or (iiB) fails to make such an election in writing, the Indemnified Party may (subject to the Indemnifying Party’s continuing right of election in the preceding sentence), at its option, defend, settle, compromise or pay such action or claimAction; provided provided, that any such settlement or compromise shall be permitted hereunder only with the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. Unless and until the Indemnifying Party makes an election in accordance with this Section to defend, settle, compromise or pay such action or claim, all of the Indemnified Party’s reasonable costs arising out of the defense, settlement, compromise or payment thereof shall will be Losses subject to indemnification by the Indemnifying Party (subject to the provisions and limitations of Sections 9.2 and 9.3, as applicable). Each Indemnified Party shall make available to the Indemnifying Party all information reasonably available to such Indemnified Party relating to such action or claimAction. If the Indemnifying Party elects to defend any such action or claimAction, the Indemnified Party may participate in such defense with counsel of its choice choice, which shall be at the Indemnified Party’s sole cost and expense. If expense unless the Indemnified Party reasonably concludes based on advice of its outside counsel that representation of both parties by the same counsel would be inappropriate due to an actual or potential conflict of interest between them.
(b) The Indemnified Party will not have the right to settle any third party Action without the written consent of the Indemnifying Party elects if the Indemnifying Party is contesting such Action in good faith and has assumed the defense of such Action from the Indemnified Party or if the period for determining whether or not to assume the defense of such Action from the Indemnified Party has not expired.
(c) In calculating the amount of any Losses of an Indemnified Party under this Article IX, there will be subtracted the amount of any (i) insurance proceeds (net of Taxes actually incurred and net of any increased premiums, deductibles or otherwise elects other costs incurred relating to negotiatethe receipt of such proceeds and attributable solely to any such Loss or Losses, settle and as certified by an officer of the Indemnified Party), other than proceeds received through self-insurance or compromiseinsurance provided by Affiliates of such Indemnified Party, actually received by the Indemnified Party with respect to such Losses and (ii) third-party payments actually received by the Indemnified Party with respect to such Losses (net of Taxes actually incurred), in each case without imposing any action obligation on the Indemnified Party to pursue any insurance claim or claim as described any such receipt of such proceeds or payments referred to in clause (i) or (ii). In the event that the Indemnifying Party reimburses the Indemnified Party for any Losses prior to the occurrence of any events contemplated by clauses (i) or (ii) above, the Indemnified Party shall reimburse will remit to the Indemnifying Party for all costs and expenses incurred by any such amounts that the Indemnified Party subsequently receives or realizes with respect to such Losses. Upon the payment in full of any claim hereunder, the Indemnifying Party will be subrogated to the rights of the Indemnified Party against any Person with respect to the subject matter of such claim.
(d) Without limitation of their respective rights and obligations as set forth elsewhere in connection this Article IX, and subject to the procedures for indemnification claims set forth in this Article IX, each Indemnifying Party and Indemnified Party will act in good faith, and each Indemnified Party will use commercially reasonable efforts to mitigate any Losses indemnifiable hereunder, will use similar discretion in the use of personnel and the incurring of expenses as each Indemnifying Party would reasonably be expected to use if they were engaged and acting entirely at their own cost and for their own account, and will consult as regularly as reasonably practicable with such defense each Indemnifying Party regarding the conduct of any Actions or the taking of any action for which indemnification may be sought.
(e) The Company Entities and the Purchaser agree to treat and report all indemnity payments as additional adjustments to the amount of the total consideration paid for the Acquired Assets for all Tax purposes unless required by applicable Requirements of Law.
(f) Notwithstanding anything to the contrary contained herein, in no event shall any Losses for which any Person is entitled to indemnification provided for herein cover, and in no event shall any party hereto be liable for Losses that include, any indirect damages, including consequential, incidental, exemplary or special damages, or punitive damages (except to the extent necessary to reimburse an Indemnified Party for judgments or awards actually awarded to third parties in respect of such costs types of damages).
(g) After the Closing Date, other than as provided in Section 2.4 or the Credit Card Program Agreement, and expenses do except with respect to claims based on fraud, knowing or willful breach of this Agreement and/or claims seeking equitable remedies, this Article IX will constitute the Company Entities’ and the Purchaser’s (and their respective Affiliates’) exclusive remedy for any of the matters addressed herein or other claim arising out of or relating to this Agreement. For the avoidance of doubt, if the Closing does not total an amount indemnifiable pursuant to occur, this Article IX shall not apply and the parties shall have the rights and remedies specified in Section 9.2 or Section 9.3, as applicable8.2.
Appears in 1 contract
Notice, Settlements and Other Matters. (a) A party seeking indemnification pursuant to Section 9.2 12.2 or 9.3 Section 11.4 (an “Indemnified Party”) must give prompt written notice to the party from whom such indemnification is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any action or proceeding, in respect of which indemnity may be sought hereunder specifying in reasonable detail the individual items of the Losses in respect of which indemnification is sought including the amount, the date each such item was paid, incurred or properly accrued, and the specific details of the breach of representation, warranty or covenant or other claim or matter to which such item is related. In the event that any third party claim is made against the Indemnified Party and the Indemnified Party notifies the Indemnifying Party of the commencement thereof, the Indemnifying Party may elect at any time to negotiate a settlement or a compromise of such action or claim or to defend such action or claim, in each case at its sole cost and expense (subject to the limitations set forth in Section 9.212.2, if the Parent is Sellers are the Indemnifying Party, or Section 9.312.3, if the Purchaser is the Indemnifying Party) and with its own counsel. If, within thirty (30) days of receipt from an Indemnified Party of the notice referred to above above, the Indemnifying Party (i) advises the Indemnified Party in writing that it shall not elect to defend, settle or otherwise compromise or pay such action or claim or (ii) fails to make such an election in writing, the Indemnified Party may (subject to the Indemnifying Party’s continuing right of election in the preceding sentence), at its option, defend, settle, compromise or pay such action or claim; provided that any such settlement or compromise shall be permitted hereunder only with the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. Unless and until the Indemnifying Party makes an election in accordance with this Section to defend, settle, compromise or pay such action or claim, all of the Indemnified Party’s reasonable costs arising out of the defense, settlement, compromise or payment thereof shall be Losses subject to indemnification by the Indemnifying Party (subject to the provisions and limitations of Sections 9.2 12.2 and 9.312.3, as applicable). Each Indemnified Party shall make available to the Indemnifying Party all information reasonably available to such Indemnified Party relating to such action or claim. If the Indemnifying Party elects to defend any such action or claim, the Indemnified Party may participate in such defense with counsel of its choice at the Indemnified Party’s sole cost and expense. If .
(b) The Indemnified Party shall have the right to reject any settlement proposed by the Indemnifying Party elects if the Indemnified Party is not fully and unconditionally released from any liability resulting from that claim or is required to pay any costs, expenses or damages to any person as a result of the claim that are not covered by the indemnity provided herein. The Indemnified Party shall not have the right to settle any third party claim without the written consent of the Indemnifying Party if the Indemnifying Party is contesting such claim in good faith and has assumed the defense of such claim from the Indemnified Party or if the period for determining whether or not to assume the defense of such claim from the Indemnified Party has not expired.
(or otherwise elects c) In calculating the amount of any Losses of an Indemnified Party under this Article XII, there shall be subtracted the amount of any (1) Tax benefits actually realized by the Indemnified Party with respect to negotiatesuch Losses, settle or compromise(2) insurance proceeds and third-party payments actually received by the Indemnified Party with respect to such Losses and (3) any action merchant charge-backs or claim as described other set-offs that would be permissible under the operating rules and regulations of the applicable Card Association in effect at that time (whether or not such charge-back or other set-off was actually made), and there shall be added the amount of any related Tax costs or other expenses. In the event that the Indemnifying Party reimburses the Indemnified Party for any Losses prior to the realization or receipt of any proceeds, benefits, payments, charge-backs or set-offs contemplated by clauses (1), (2) or (3) above, the Indemnified Party shall reimburse remit to the Indemnifying Party for all any such amounts that the Indemnified Party subsequently receives or realizes with respect to such Losses (net of any related Tax costs and or other expenses incurred by the Indemnifying Party in connection with such defense to the extent such costs amounts were not previously taken into account). Upon the payment of any claim hereunder, the Indemnifying Party shall be subrogated to the extent of such payment to the rights of the Indemnified Party against any person with respect to the subject matter of such claim.
(d) Without limitation of their respective rights and obligations as set forth elsewhere in this Article XII, and subject to the procedures for indemnification claims set forth in this Article XII, the Indemnified Party shall act in good faith, shall use commercially reasonable efforts to mitigate any Losses (including by seeking to fully realize or receive any proceeds, benefits, payments, charge-backs or set-offs contemplated by clauses (1), (2) and (3) of Section 12.4(c)), shall use similar discretion in the use of personnel and the incurring of expenses do as the Indemnified Party would use if it were engaged and acting entirely at its own cost and for its own account, and shall consult regularly with the Indemnifying Party with respect to all its matters of interest to the Indemnifying Party under this Article XII.
(e) All indemnity payments shall be treated as additional adjustments to the amount of the total consideration paid for the Acquired Assets and Stock and the Business for all Tax purposes.
(f) Notwithstanding anything to the contrary contained herein, the indemnification provided for herein shall not total cover, and in no event shall any party hereto be liable for, any indirect damages, including consequential, incidental, exemplary or special damages, or punitive damages (except to the extent necessary to reimburse an amount indemnifiable pursuant Indemnified Party for judgments actually awarded to Section 9.2 third parties in respect of such types of damages).
(g) After the First Closing Date, Article XI and this Article XII shall constitute the Sellers’ and the Purchaser’s exclusive remedy for any of the matters addressed herein or Section 9.3other claim arising out of or relating to this Agreement; provided, as applicablehowever, that this provision shall not impair the ability of either party to obtain specific performance or other equitable relief. Notwithstanding the foregoing, the indemnification obligations and other obligations set forth in Article XI of this Agreement, and any claims arising out of the matters addressed in Article XI of this Agreement, shall, to the extent addressed therein, be governed solely by such Article XI and not by this Article XII.
Appears in 1 contract
Samples: Purchase, Sale and Servicing Transfer Agreement (Macy's, Inc.)
Notice, Settlements and Other Matters. (a) A party seeking indemnification pursuant to Section 9.2 or 9.3 (an “"Indemnified Party”") must give prompt written notice to the party from whom such indemnification is sought (the “"Indemnifying Party”") of the assertion of any claim, or the commencement of any action or proceedingAction, in respect of which indemnity may be sought hereunder specifying in reasonable detail the individual items of the such Losses in respect of which indemnification is sought including the amount, the date each such item was paid, incurred or properly accruedaccrued or arose, and the specific details of the breach of representation, warranty or covenant or other claim or matter to which such item is related. Notwithstanding the foregoing, the failure of the Indemnified Party to furnish the written notice referred to in the preceding sentence in a prompt manner shall not effect its right to indemnification to the extent the Indemnifying Party's right to defend the matter is not materially prejudiced by such failure to give prompt notice. In the event that any third party claim is made against the Indemnified Party and the Indemnified Party notifies the Indemnifying Party of the commencement thereof, the Indemnifying Party may elect at any time to negotiate a settlement or a compromise of such action or claim Action or to defend such action or claimAction, in each case at its sole cost and expense (subject to the limitations set forth in Section 9.2, if the Parent is Sellers are the Indemnifying Party, or Section 9.3, if the Purchaser is the Indemnifying Party) and with its own counsel. If, within thirty (30) days of receipt from an Indemnified Party of the notice referred to above the Indemnifying Party (i) advises the Indemnified Party in writing that it shall will not elect to defend, settle or otherwise compromise or pay such action or claim Action or (ii) fails to make such an election in writing, the Indemnified Party may (subject to the Indemnifying Party’s 's continuing right of election in the preceding sentence), at its option, defend, settle, compromise or pay such action or claimAction; provided that any such settlement or compromise shall be permitted -------- hereunder only with the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. Unless and until the Indemnifying Party makes an election in accordance with this Section to defend, settle, compromise or pay such action or claim, all of the Indemnified Party’s 's reasonable costs arising out of the defense, settlement, compromise or payment thereof shall will be Losses subject to indemnification by the Indemnifying Party (subject to the provisions and limitations of Sections 9.2 and 9.3, as applicable). Each Indemnified Party shall make available to the Indemnifying Party all information reasonably available to such Indemnified Party relating to such action or claimAction. If the Indemnifying Party elects to defend any such action or claimAction, the Indemnified Party may participate in such defense with counsel of its choice at the Indemnified Party’s 's sole cost and expense. If the Indemnifying Party elects to assume the defense of (or otherwise elects to negotiate, settle or compromise) any action or claim Action as described above, the Indemnified Party shall will reimburse the Indemnifying Party for all costs and expenses incurred by the Indemnifying Party in connection with such defense to the extent such costs and expenses do not total an amount indemnifiable pursuant to Section 9.2 or Section 9.3, as applicable.
(b) The Indemnified Party will have the right to reject any settlement approved by the Indemnifying Party if the Indemnified Party is not fully and unconditionally released from any liability resulting from that claim or is required to pay any costs, expenses or damages to any Person as a result of the Action that are not covered by the indemnity provided herein. The Indemnified Party will not have the right to settle any third party Action without the written consent of the Indemnifying Party if the Indemnifying Party is contesting such Action in good faith and has assumed the defense of such Action from the Indemnified Party or if the period for determining whether or not to assume the defense of such Action from the Indemnified Party has not expired.
(c) In calculating the amount of any Losses of an Indemnified Party under this Article IX, there will be subtracted the amount of any (i) insurance proceeds (net of Taxes actually incurred, and other than proceeds received through self-insurance or insurance provided by Affiliates of such Indemnified Party) actually received by the Indemnified Party with respect to such Losses and (ii) third-party payments actually received by the Indemnified Party respect to such Losses. In the event that the Indemnifying Party reimburses the Indemnified Party for any Losses prior to the occurrence of any events contemplated by clause (i) or (ii) above, the Indemnified Party will remit to the Indemnifying Party any such amounts that the Indemnified Party subsequently receives or realizes with respect to such Losses. Upon the payment in full of any claim hereunder, the Indemnifying Party will be subrogated to the rights of the Indemnified Party against any Person with respect to the subject matter of such claim.
(d) Without limitation of their respective rights and obligations as set forth elsewhere in this Article IX, and subject to the procedures for indemnification claims set forth in this Article IX, the Indemnified Party will act in good faith, will use commercially reasonable efforts to mitigate any Losses, will use similar discretion in the use of personnel and the incurring of expenses as the Indemnifying Party would use if they were engaged and acting entirely at their own cost and for their own account, and will consult regularly with the Indemnifying Party regarding the conduct of any Actions or the taking of any action for which indemnification may be sought.
(e) The Sellers and the Purchaser agree to treat and report all indemnity payments as additional adjustments to the amount of the total consideration paid for the Acquired Assets for all Tax purposes unless required by applicable Requirements of Law.
(f) The Indemnifying Party shall not be liable for any Loss of an Indemnified Party under Section 9.2 or 9.3 to the extent that the Indemnified Party has been compensated for such Loss pursuant to the purchase price adjustment provisions in Section 2.4.
(g) Notwithstanding anything to the contrary contained herein, the indemnification provided for herein shall not cover, and in no event shall any party hereto be liable for, any indirect damages, including consequential, incidental, exemplary or special damages, or punitive damages (except to the extent necessary to reimburse an Indemnified Party for judgments actually awarded to third parties in respect of such types of damages).
(h) After the Closing Date, other than as provided in Section 2.4 and except with respect to claims based on fraud and/or claims seeking equitable remedies, this Article IX will constitute the Sellers' and the Purchaser's exclusive remedy for any of the matters addressed herein or other claim arising out of or relating to this Agreement.
Appears in 1 contract
Notice, Settlements and Other Matters. (a) A party seeking indemnification pursuant to Section 9.2 or 9.3 (an “"Indemnified Party”") must give prompt written notice to the party from whom such indemnification is sought (the “"Indemnifying Party”") of the assertion of any claim, a claim for indemnification or the assertion or commencement of any action or proceedingAction, in respect of which indemnity may be sought hereunder specifying in reasonable detail the individual items of the such Losses in respect of which indemnification is sought including the amount, the date each such item was paid, incurred or properly accruedaccrued or arose, and the specific details of the breach of representation, warranty or covenant or other claim or matter to which such item is related. Notwithstanding the foregoing, the failure of the Indemnified Party to furnish the written notice referred to in the preceding sentence in a prompt manner shall not affect its right to indemnification and will not relieve the Indemnifying Party of any Liability it may have to the Indemnified Party, except to the extent that the Indemnifying Party's right to defend the matter is materially and irrevocably prejudiced by such failure to give prompt notice. In the event that any third party claim is made against the Indemnified Party and the Indemnified Party notifies the Indemnifying Party of the commencement thereof, the Indemnifying Party may may, subject to Section 9.4(b), elect at any time to negotiate a settlement or a compromise of such action or claim Action or to defend such action or claimAction, in each case at its sole cost and expense (subject to the limitations set forth in Section 9.2, if the Parent is the Indemnifying Party, or Section 9.3, if the Purchaser is the Indemnifying Party) and with its own counselcounsel reasonably acceptable to the Indemnified Party, provided, however that any such settlement or compromise may only be for the payment of money damages, unless with the prior written consent of the Indemnified Party. If, within thirty (30) days of receipt from an Indemnified Party of the notice referred to above the Indemnifying Party (i) advises the Indemnified Party in writing that it shall will not elect to defend, settle or otherwise compromise or pay such action or claim Action or (ii) fails to make such an election in writing, the Indemnified Party may (subject to the Indemnifying Party’s 's continuing right of election in the preceding sentence), at its option, defend, settle, compromise or pay such action or claimAction; provided that any such settlement or compromise shall be permitted hereunder only with the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. Unless and until the Indemnifying Party makes an election in accordance with this Section to defend, settle, compromise or pay such action Action or claim, all of the Indemnified Party’s 's reasonable costs arising out of the defense, settlement, compromise or payment thereof shall will be Losses subject to indemnification by the Indemnifying Party (subject to the provisions and limitations of Sections 9.2 and 9.3, as applicable)Party. Each Indemnified Party shall make available to the Indemnifying Party all information reasonably available to such Indemnified Party relating to such action Action, provided the Indemnifying Party has elected to defend, settle or claimotherwise compromise or pay such Action. If the Indemnifying Party elects to defend any such action or claimAction, the Indemnified Party may participate in such defense with counsel of its choice at the Indemnified Party’s 's sole cost and expense. If , unless (i) the employment of such counsel has been authorized in writing by the Indemnifying Party, (ii) the Indemnifying Party elects has not employed counsel to take charge of the defense within twenty (20) days after delivery of the applicable notice, or having elected to assume such defense, thereafter ceases to diligently pursue its defense of such Action, or (iii) the Indemnified Party has reasonably concluded that there may be defenses available to it, that are different from or additional to those available to the Indemnifying Party (in which case the Indemnifying Party shall not have the right to direct the defense of such Action on behalf of the Indemnified Party), in any of which event attorney's fees and expenses shall be borne by the Indemnifying Party.
(b) The Indemnified Party will have the right to reject any settlement approved by the Indemnifying Party if the Indemnified Party is not fully and unconditionally released from any Liability resulting from that claim or is required to pay any costs, expenses or damages to any Person as a result of the Action that are not covered by and paid or payable pursuant to the indemnity provided herein. The Indemnified Party will not have the right to settle any third party Action without the written consent of the Indemnifying Party if the Indemnifying Party is actively contesting such Action in good faith and has assumed the defense of such Action from the Indemnified Party or if the period for determining whether or not to assume the defense of such Action from the Indemnified Party has not expired.
(c) In calculating the amount of any Losses of an Indemnified Party under this Article IX, there will be subtracted the amount of any (1) insurance proceeds (net of Taxes actually incurred, and other than proceeds received through self-insurance or otherwise elects insurance provided by Affiliates of such Indemnified Party) actually received by the Indemnified Party with respect to negotiate, settle such Losses and (2) third-party payments actually received by the Indemnified Party with respect to such Losses. In the event that the Indemnifying Party reimburses the Indemnified Party for any Losses prior to the occurrence of any events contemplated by clauses (1) or compromise(2) any action or claim as described above, the Indemnified Party shall reimburse will remit to the Indemnifying Party for all costs and expenses incurred by any such amounts that the Indemnified Party subsequently receives or realizes with respect to such Losses. Upon the payment in full of any claim hereunder, the Indemnifying Party in connection with such defense will be subrogated to the extent rights of the Indemnified Party against any Person with respect to the subject matter of such costs claim.
(d) Without limitation of their respective rights and obligations as set forth elsewhere in this Article IX, and subject to the procedures for indemnification claims set forth in this Article IX, the Indemnified Party will act in good faith, will use commercially reasonable efforts to mitigate any Losses, will use similar discretion in the use of personnel and the incurring of expenses do not total an amount indemnifiable pursuant to Section 9.2 as the Indemnified Party would use if the Indemnified Party was engaged and acting entirely at its own cost and for its own account, and will consult regularly with the Indemnifying Party regarding the conduct of any Actions or Section 9.3the taking of any action for which indemnification may be sought.
(e) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, as applicableTHE INDEMNIFICATION PROVIDED FOR HEREIN SHALL NOT COVER, AND IN NO EVENT SHALL ANY PARTY HERETO BE LIABLE FOR, ANY INDIRECT DAMAGES, INCLUDING CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR SPECIAL DAMAGES, OR PUNITIVE DAMAGES OR IN THE CASE OF ANY "PUTATIVE DAMAGES," OR FOR ANY INDEMNIFIED PARTY'S NEGLIGENCE OR WILLFUL MISCONDUCT.
(f) BANK'S TOTAL CUMULATIVE LIABILITY TO BLAIR FOR ALL DAMAGES FOR ANY CAUSE WHATSOEVER, SHALL NOT EXCEED THE XXXXXNITY CAP PROVIDED, HOWEVER, THAT THIS LIMITATION SHALL NOT APPLY WITH RESPECT TO BANK'S INTENTIONAL BREACH OF THIS AGREEMENT.
Appears in 1 contract
Samples: Purchase, Sale and Servicing Transfer Agreement (Blair Corp)
Notice, Settlements and Other Matters. (a) A party seeking indemnification pursuant to Section 9.2 8.2 or 9.3 8.3 (an “Indemnified Party”) must give prompt written notice to the party from whom such indemnification is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any action or proceeding, in respect of which indemnity may be sought hereunder specifying in reasonable detail hereunder; provided, that the individual items of failure to give such notice shall not relieve the Losses in respect of which indemnification is sought including Indemnifying Party from its obligations under this Article VIII except to the amountextent that the Indemnified Party’s ability to defend such claim, the date each such item was paid, incurred action or properly accrued, and the specific details of the breach of representation, warranty or covenant or other claim or matter to which such item is relatedproceeding has been materially prejudiced thereby. In the event that any third party claim is made against the Indemnified Party and the Indemnified Party notifies the Indemnifying Party of the commencement thereof, the Indemnifying Party may elect at any time to negotiate a settlement or a compromise of such action or claim or to defend such action or claim, in each case at its sole cost and expense (subject to the limitations set forth in Section 9.2, if the Parent is the Indemnifying Party, or Section 9.3, if the Purchaser is the Indemnifying Party8.2) and with its own counsel. If, within thirty (30) days of receipt from an Indemnified Party of the notice referred to above above, the Indemnifying Party (i) advises the Indemnified Party in writing that it shall will not elect to defend, settle or otherwise compromise or pay such action or claim or (ii) fails to make notify the Indemnified Party of its election to defend, settle or otherwise compromise such an election in writingaction or claim or if at any time the Indemnifying Party fails to diligently prosecute any claim or action it elects to defend, the Indemnified Party may (subject to the Indemnifying Party’s continuing right of election in the preceding sentence), at its option, defend, settle, compromise or pay such action or claim; provided provided, that any such settlement or compromise shall be permitted hereunder only with the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. Unless and until the Indemnifying Party makes an election in accordance with this Section to defend, settle, compromise or pay such action or claimclaim or at any time the Indemnifying Party fails to diligently prosecute any claim or action it elects to defend, compromise or settle, all of the Indemnified Party’s reasonable costs arising out of the defense, settlement, compromise or payment thereof shall will be Losses subject to indemnification by the Indemnifying Party (subject to the provisions and limitations of Sections 9.2 and 9.3, as applicableSection 8.2). Each Indemnified Party shall make available to the Indemnifying Party all information reasonably available to such Indemnified Party relating to such action or claim. If the Indemnifying Party elects to defend any such action or claim, the Indemnified Party may participate in such defense with counsel of its choice at the Indemnified Party’s sole cost and expense. If .
(b) The Indemnified Party will have the right to reject any settlement approved by the Indemnifying Party elects if the Indemnified Party concludes in its reasonable good faith judgment that it is not fully and unconditionally released from any liability resulting from that claim or is required to pay any costs, expenses or damages to any Person as a result of the claim that are not covered by the indemnity provided herein. In the event the Indemnified Party rejects any such settlement, the Indemnifying Party’s obligation shall remain outstanding without modification. The Indemnified Party will not have the right to settle any third party claim without the written consent of the Indemnifying Party if the Indemnifying Party is contesting such claim in good faith and has assumed the defense of such claim from the Indemnified Party or if the period for determining whether or not to assume the defense of (or otherwise elects to negotiate, settle or compromise) any action or such claim as described above, from the Indemnified Party has not expired.
(c) Seller and Purchaser agree to treat all indemnity payments as adjustments to the amount of the total consideration paid for the Transferred Assets for all Tax purposes.
(d) Notwithstanding anything to the contrary contained herein, the indemnification provided for herein shall not cover, and in no event shall any party hereto be liable for, any indirect damages or Losses, including lost profits or opportunities, or any consequential, incidental, exemplary or special damages, or punitive damages (except to the extent necessary to reimburse the Indemnifying an Indemnified Party for all costs judgments actually awarded to third parties in respect of such types of damages).
(e) After the Closing, other than as provided in Section 5.3(d), this Article VIII will constitute Seller’s and expenses incurred Purchaser’s (and their respective Affiliates’) exclusive remedy for any of the matters addressed herein or other claim arising out of or relating to this Agreement, other than fraud.
(f) The parties acknowledge that certain matters that form a valid basis for Purchaser asserting a breach of representation claim may also, because of the scope of the definition of “Assumed Liabilities,” constitute an Assumed Liability. For example, if Seller fails to disclose pending litigation as required by Section 4.1(k) and such litigation directly arises out of or relates to the Indemnifying Party Transferred Assets, Seller’s failure to disclose such matter would constitute a breach of its representation in connection with Section 4.1(k), and, at the same time, such defense pending litigation would be an Assumed Liability. Notwithstanding such overlap, (i) Purchaser’s right to bring a breach of representation claim shall not be impaired so long as it is made on the terms set forth in Article VIII (and will take priority over any Assumed Liability claim by Seller for the same matter on which Purchaser’s breach of representation claim is asserted) and (ii) Seller shall continue to have the benefit of the applicable survival period, Deductible Amount, cap on liability and other rights granted thereto that relate to defending a breach of representation claim brought by Purchaser, in each case, to the extent such costs and expenses do not total an amount indemnifiable pursuant rights apply to Section 9.2 or Section 9.3, as applicablethe type of breach of representation claim asserted.
Appears in 1 contract
Notice, Settlements and Other Matters. (a) A party seeking indemnification pursuant to Section 9.2 12.2 or 9.3 Section 11.4 (an “"Indemnified Party”") must give prompt written notice to the party from whom such indemnification is sought (the “"Indemnifying Party”") of the assertion of any claim, or the commencement of any action or proceeding, in respect of which indemnity may be sought hereunder specifying in reasonable detail the individual items of the Losses in respect of which indemnification is sought including the amount, the date each such item was paid, incurred or properly accrued, and the specific details of the breach of representation, warranty or covenant or other claim or matter to which such item is related. In the event that any third party claim is made against the Indemnified Party and the Indemnified Party notifies the Indemnifying Party of the commencement thereof, the Indemnifying Party may elect at any time to negotiate a settlement or a compromise of such action or claim or to defend such action or claim, in each case at its sole cost and expense (subject to the limitations set forth in Section 9.212.2, if the Parent is Sellers are the Indemnifying Party, or Section 9.312.3, if the Purchaser is the Indemnifying Party) and with its own counsel. If, within thirty (30) days of receipt from an Indemnified Party of the notice referred to above above, the Indemnifying Party (i) advises the Indemnified Party in writing that it shall not elect to defend, settle or otherwise compromise or pay such action or claim or (ii) fails to make such an election in writing, the Indemnified Party may (subject to the Indemnifying Party’s 's continuing right of election in the preceding sentence), at its option, defend, settle, compromise or pay such action or claim; provided that any such settlement or compromise shall be permitted hereunder only with the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. Unless and until the Indemnifying Party makes an election in accordance with this Section to defend, settle, compromise or pay such action or claim, all of the Indemnified Party’s 's reasonable costs arising out of the defense, settlement, compromise or payment thereof shall be Losses subject to indemnification by the Indemnifying Party (subject to the provisions and limitations of Sections 9.2 12.2 and 9.312.3, as applicable). Each Indemnified Party shall make available to the Indemnifying Party all information reasonably available to such Indemnified Party relating to such action or claim. If the Indemnifying Party elects to defend any such action or claim, the Indemnified Party may participate in such defense with counsel of its choice at the Indemnified Party’s 's sole cost and expense. If .
(b) The Indemnified Party shall have the right to reject any settlement proposed by the Indemnifying Party elects if the Indemnified Party is not fully and unconditionally released from any liability resulting from that claim or is required to pay any costs, expenses or damages to any person as a result of the claim that are not covered by the indemnity provided herein. The Indemnified Party shall not have the right to settle any third party claim without the written consent of the Indemnifying Party if the Indemnifying Party is contesting such claim in good faith and has assumed the defense of such claim from the Indemnified Party or if the period for determining whether or not to assume the defense of such claim from the Indemnified Party has not expired.
(or otherwise elects c) In calculating the amount of any Losses of an Indemnified Party under this Article XII, there shall be subtracted the amount of any (1) Tax benefits actually realized by the Indemnified Party with respect to negotiatesuch Losses, settle or compromise(2) insurance proceeds and third-party payments actually received by the Indemnified Party with respect to such Losses and (3) any action merchant charge-backs or claim as described other set-offs that would be permissible under the operating rules and regulations of the applicable Card Association in effect at that time (whether or not such charge-back or other set-off was actually made), and there shall be added the amount of any related Tax costs or other expenses. In the event that the Indemnifying Party reimburses the Indemnified Party for any Losses prior to the realization or receipt of any proceeds, benefits, payments, charge-backs or set-offs contemplated by clauses (1), (2) or (3) above, the Indemnified Party shall reimburse remit to the Indemnifying Party for all any such amounts that the Indemnified Party subsequently receives or realizes with respect to such Losses (net of any related Tax costs and or other expenses incurred by the Indemnifying Party in connection with such defense to the extent such costs amounts were not previously taken into account). Upon the payment of any claim hereunder, the Indemnifying Party shall be subrogated to the extent of such payment to the rights of the Indemnified Party against any person with respect to the subject matter of such claim.
(d) Without limitation of their respective rights and obligations as set forth elsewhere in this Article XII, and subject to the procedures for indemnification claims set forth in this Article XII, the Indemnified Party shall act in good faith, shall use commercially reasonable efforts to mitigate any Losses (including by seeking to fully realize or receive any proceeds, benefits, payments, charge-backs or set-offs contemplated by clauses (1), (2) and (3) of Section 12.4(c)), shall use similar discretion in the use of personnel and the incurring of expenses do not as the Indemnified Party would use if it were engaged and acting entirely at its own cost and for its own account, and shall consult regularly with the Indemnifying Party with respect to all its matters of interest to the Indemnifying Party under this Article XII.
(e) All indemnity payments shall be treated as additional adjustments to the amount of the total an amount indemnifiable pursuant to Section 9.2 or Section 9.3, as applicableconsideration paid for the Acquired Assets and Stock and the Business for all Tax purposes.
Appears in 1 contract
Samples: Purchase, Sale and Servicing Transfer Agreement (Federated Department Stores Inc /De/)
Notice, Settlements and Other Matters. (a) A party seeking indemnification pursuant to Section 9.2 or 9.3 (an “"Indemnified Party”") must give prompt written notice to the party from whom such indemnification is sought (the “"Indemnifying Party”") of the assertion of any claim, or the commencement of any action or proceedingAction, in respect of which indemnity may be sought hereunder specifying in reasonable detail the individual items of the such Losses in respect of which indemnification is sought including the amount, the date each such item was paid, incurred or properly accruedaccrued or arose, and the specific details of the breach of representation, warranty or covenant or other claim or matter to which such item is related. Notwithstanding the foregoing, the failure of the Indemnified Party to furnish the written notice referred to in the preceding sentence in a prompt manner shall not effect its right to indemnification to the extent the Indemnifying Party's right to defend the matter is not materially prejudiced by such failure to give prompt notice. In the event that any third party claim is made against the Indemnified Party and the Indemnified Party notifies the Indemnifying Party of the commencement thereof, the Indemnifying Party may elect at any time to negotiate a settlement or a compromise of such action or claim Action or to defend such action or claimAction, in each case at its sole cost and expense (subject to the limitations set forth in Section 9.2, if the Parent is Sellers are the Indemnifying Party, or Section 9.3, if the Purchaser is the Indemnifying Party) and with its own counsel. If, within thirty (30) days of receipt from an Indemnified Party of the notice referred to above the Indemnifying Party (i) advises the Indemnified Party in writing that it shall will not elect to defend, settle or otherwise compromise or pay such action or claim Action or (ii) fails to make such an election in writing, the Indemnified Party may (subject to the Indemnifying Party’s 's continuing right of election in the preceding sentence), at its option, defend, settle, compromise or pay such action or claimAction; provided that any such settlement or compromise shall be permitted hereunder only with the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. Unless and until the Indemnifying Party makes an election in accordance with this Section to defend, settle, compromise or pay such action or claim, all of the Indemnified Party’s 's reasonable costs arising out of the defense, settlement, compromise or payment thereof shall will be Losses subject to indemnification by the Indemnifying Party (subject to the provisions and limitations of Sections 9.2 and 9.3, as applicable). Each Indemnified Party shall make available to the Indemnifying Party all information reasonably available to such Indemnified Party relating to such action or claimAction. If the Indemnifying Party elects to defend any such action or claimAction, the Indemnified Party may participate in such defense with counsel of its choice at the Indemnified Party’s 's sole cost and expense. If the Indemnifying Party elects to assume the defense of (or otherwise elects to negotiate, settle or compromise) any action or claim Action as described above, the Indemnified Party shall will reimburse the Indemnifying Party for all costs and expenses incurred by the Indemnifying Party in connection with such defense to the extent such costs and expenses do not total an amount indemnifiable pursuant to Section 9.2 or Section 9.3, as applicable.
Appears in 1 contract
Samples: Purchase, Sale and Servicing Transfer Agreement (Dillards Inc)
