Procedures; Exclusivity. (a) In order for a party (the "indemnified party") to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim made by any Person against the indemnified party (a "Third Party Claim"), such indemnified party must notify the indemnifying party in writing (and in reasonable detail) of the Third Party Claim promptly following receipt by such indemnified party of written notice of the Third Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure. Thereafter, the indemnified party shall deliver to the indemnifying party, promptly after the indemnified party's receipt thereof, copies of all notices and documents (including court papers) received by the indemnified party relating to the Third Party Claim. (b) If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses incurred from and after the date of such assumption by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof. If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnifying party's request and at its expense) the provision to the indemnifying party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the indemnifying party's prior written consent (which consent shall not be unreasonably withheld). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim (or, in the case of any Third Party Claim with respect to Taxes, as to which the indemnifying party acknowledges in writing its obligation to make payment in full), that releases the indemnified party completely in connection with such Third Party Claim (or, in the case of any Third Party Claim with respect to Taxes, as to which the indemnifying party acknowledges in writing its obligation to make payment in full) and that would not otherwise materially and adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. (c) In the event any indemnified party should have a claim against any indemnifying party under this Article VII that does not involve a Third Party Claim being asserted against or sought to be collected from such indemnified party, the indemnified party shall deliver notice of such claim with reasonable promptness to the indemnifying party. So long as the indemnified party provides notification to the indemnifying party prior to the termination of the obligation to indemnify as set forth in Section 7.05, the failure by any indemnified party so to notify the indemnifying party shall not relieve the indemnifying party from any liability that it may have to such indemnified party under this Article VII, except to the extent that the indemnifying party demonstrates that it has been actually prejudiced by such failure. The indemnifying party and the indemnified party shall proceed in good faith to negotiate a resolution of any dispute with respect to such a claim and, if not resolved through negotiations, such dispute shall be resolved by litigation in an appropriate court of competent jurisdiction. (d) After the Closing, Section 7.01 shall constitute the exclusive remedy for any misrepresentation or breach of warranty contained in this Agreement.
Appears in 5 contracts
Samples: Transaction Agreement (Usa Networks Inc), Transaction Agreement (Usa Interactive), Transaction Agreement (Vivendi Universal)
Procedures; Exclusivity. (a) In order for a party (the "“indemnified party") ”), to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim made by any Person against the indemnified party (a "“Third Party Claim"”), such indemnified party must notify the indemnifying party in writing (and in reasonable detail) of the Third Party Claim promptly following after receipt by such indemnified party of written notice of the Third Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. Thereafter, the indemnified party shall deliver to the indemnifying party, promptly after the indemnified party's ’s receipt thereof, copies of all notices and documents (including court papers) received by the indemnified party relating to the Third Party Claim.
(b) If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred from and after the date of such assumption by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof. If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnifying party's request and at its expense’s request) the provision to the indemnifying party of records and information which that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the indemnifying party's ’s prior written consent (which consent shall not be unreasonably withheld). If the indemnifying party assumes the defense of a Third Party Claim, it shall not settle any such claim without the prior written consent of the indemnified party (which consent shall not be unreasonably withheld); provided, however, that the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim (orClaim, in the case of any Third Party Claim with respect to Taxes, as to which the indemnifying party acknowledges in writing its obligation to make payment in full), that releases the indemnified party completely in connection with such Third Party Claim (or, in the case of any Third Party Claim with respect to Taxes, as to which the indemnifying party acknowledges in writing its obligation to make payment in full) and that would not otherwise materially and adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume the defense of the portion relating to money damages.
(c) In the event any indemnified party should have a claim against any indemnifying party under this Article VII V that does not involve a Third Party Claim being asserted against or sought to be collected from such indemnified party, the indemnified party shall deliver notice of such claim with reasonable promptness to the indemnifying party. So long as the indemnified party provides notification Subject to the indemnifying party prior to the termination of the obligation to indemnify as set forth in Section 7.05Sections 5.05 and 5.07, the failure by any indemnified party so to notify the indemnifying party shall not relieve the indemnifying party from any liability that it may have to such indemnified party under this Article VIIV, except to the extent that the indemnifying party demonstrates that it has been actually materially prejudiced by such failure. The indemnifying party and the indemnified party shall proceed in good faith to negotiate a resolution of any dispute with respect to such a claim and, if not resolved through negotiations, such dispute shall be resolved by litigation in an appropriate court of competent jurisdiction.
(d) After the Closing, Section 7.01 Sections 5.01 and 5.02 shall constitute the exclusive remedy for any misrepresentation or breach of warranty contained in this Agreement.
Appears in 1 contract
Samples: Transaction, Contribution and Purchase Agreement (Realnetworks Inc)
Procedures; Exclusivity. (a) In order for a The party seeking indemnification under Section 11.02 (the "indemnified partyIndemnified Party") agrees to be entitled give prompt written notice to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim made by any Person the party against whom indemnity is sought (the indemnified party (a "Third Party ClaimIndemnifying Party"), such indemnified party must notify the indemnifying party in writing (and in reasonable detail) of the Third assertion of any claim, or the commencement of any suit, action or proceeding in respect of which indemnity may be sought under such Section. The Indemnifying Party Claim promptly following receipt by may, and at its election shall, participate in and control the defense of any such indemnified party of written notice of suit, action or proceeding at its own expense. Except as otherwise provided in this Article 11, the Third Indemnifying Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the indemnifying party shall have been actually prejudiced as a result be liable under Section 11.02 for any settlement effected without its consent of such failure. Thereafterany claim, the indemnified party shall deliver to the indemnifying party, promptly after the indemnified party's receipt thereof, copies litigation or proceeding in respect of all notices and documents (including court papers) received by the indemnified party relating to the Third Party Claimwhich indemnity may be sought hereunder.
(b) If a Third The Indemnified Party Claim is made against an indemnified party, shall have the indemnifying party shall be entitled right to employ separate counsel in any action or claim and to participate in the defense thereof and, at the expense of the Indemnifying Party (i) if it so chooses, to assume the defense thereof with retention of such counsel selected has been specifically authorized by the indemnifying party; providedIndemnifying Party, however, that such or (ii) if the counsel is retained because the Indemnifying Party does not reasonably objected to by notify the indemnified party. Should the indemnifying party so elect to assume the defense Indemnified Party within twenty (20) days after receipt of a Third Party Claim, the indemnifying party shall not be liable claim notice that it elects to the indemnified party for any legal expenses incurred from and after the date of such assumption by the indemnified party in connection with undertake the defense thereof. If the indemnifying party assumes such defense, the indemnified party The Indemnified Person shall have the right to employ counsel at the Indemnified Party's own expense and participate in the defense thereof and to employ counselsuch action or claim, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof. If the indemnifying party chooses to defend including settlement or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnifying party's request and at its expense) the provision to the indemnifying party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the indemnifying party's prior written consent (which consent shall not be unreasonably withheld). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim (or, in the case of any Third Party Claim with respect to Taxes, as to which the indemnifying party acknowledges in writing its obligation to make payment in full), that releases the indemnified party completely in connection with such Third Party Claim (or, in the case of any Third Party Claim with respect to Taxes, as to which the indemnifying party acknowledges in writing its obligation to make payment in full) and that would not otherwise materially and adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damagestrial.
(c) In the event any indemnified party should have a claim against any indemnifying party under this Article VII that does not involve a Third Party Claim being asserted against or sought to be collected from such indemnified partyExcept as otherwise provided in Section 11.05, the indemnified party Indemnifying Party shall deliver notice obtain the prior written approval of the Indemnified Party before entering into any settlement, adjustment, or compromise of such claim with reasonable promptness or ceasing to defend against such claim that provides for any relief (i) other than the indemnifying party. So long as payment of monetary damages by the indemnified party provides notification to Indemnifying Party or (ii) which might adversely affect the indemnifying party prior to Indemnified Party or its business or operations, and the termination determination of whether and under what conditions such approval may be given shall be in the sole discretion of the obligation to indemnify as set forth in Section 7.05, the failure by any indemnified party so to notify the indemnifying party shall not relieve the indemnifying party from any liability that it may have to such indemnified party under this Article VII, except to the extent that the indemnifying party demonstrates that it has been actually prejudiced by such failure. The indemnifying party and the indemnified party shall proceed in good faith to negotiate a resolution of any dispute with respect to such a claim and, if not resolved through negotiations, such dispute shall be resolved by litigation in an appropriate court of competent jurisdictionIndemnified Party.
(d) After If the ClosingIndemnifying Party does not assume control over the defense of such claim as provided in Section 11.03(a) within 30 days of receipt of notice thereof, Section 7.01 the Indemnified Party shall constitute have the exclusive remedy for any misrepresentation right to defend the claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, including the right to settle, adjust or breach of warranty contained compromise such claim.
(e) Except as otherwise specifically set forth in this Agreement, Buyer and its Affiliates (including, effective at the Closing without duplication, the Company or any Subsidiary) hereby waive all rights for contribution or other rights of recovery with respect to Damages arising under or relating to Environmental Laws that Buyer or any of the Affiliates may have by statute or otherwise against Seller or any of its Affiliates.
Appears in 1 contract
Procedures; Exclusivity. (a) In order for a Promptly after the receipt by any party seeking indemnification under Section 11.02 (the "indemnified partyIndemnified Party") to be entitled to of notice of the commencement of any indemnification provided for under this Agreement in respect ofaction, arising out of claim, suit or involving proceeding (each an "Action") against such Indemnified Party by a claim made by any Person against the indemnified third party (a "Third Party Claim"other than any Action relating to Taxes or any Tax Return, as to which the provisions of Article VIII shall control), such indemnified Indemnified Party shall, if a claim with respect thereto is or may be made against any party must notify the indemnifying party in writing (and in reasonable detailan "Indemnifying Party") of the Third pursuant to Section 11.02 or (except as set forth therein) Section 11.05, give such Indemnifying Party Claim promptly following receipt by such indemnified party of written notice of the Third Party Claim; provided, however, that such Action. The failure to give such notification notice shall not affect the indemnification provided relieve any Indemnifying Party from any obligation hereunder except where, and solely to the extent that, such failure actually prejudices the rights of such Indemnifying Party. Such Indemnifying Party shall the right to defend such Action, at such Indemnifying Party's expense and with counsel of its choice reasonably satisfactory to the Indemnified Party, provided that the Indemnifying Party (i) delivers written notice to the Indemnified Party within ten days of receipt of notice of such Action pursuant to the first sentence of this Section 11.03(a) stating that it is assuming the defense of such Action and acknowledges full responsibility for all Losses arising from or related to such Action and (ii) conducts the defense of such Action in a commercially reasonable manner. If the Indemnifying Party assumes the defense of such Action, the Indemnifying Party shall conduct such defense in a commercially reasonable manner through judgment or settlement in accordance with this Section 11.03, and the Indemnified Party shall reasonably cooperate in such defense to the extent the indemnifying party shall have been actually Indemnified Party is not prejudiced thereby. So long as a result the Indemnifying Party is conducting the defense of such failure. ThereafterAction as provided in the previous sentence, the indemnified party shall deliver to the indemnifying party, promptly after the indemnified party's receipt thereof, copies of all notices and documents (including court papers) received by the indemnified party relating to the Third Indemnified Party Claim.
(b) If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to may participate in the defense thereof andof such Action by retaining separate counsel at its sole cost and expense, if it so chooses, to assume and neither the defense thereof with counsel selected by Indemnifying Party nor the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Indemnified Party Claim, the indemnifying party shall not be liable will consent to the indemnified party for entry of any legal expenses incurred from and after the date of such assumption by the indemnified party in connection judgment or enter into any settlement with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof. If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnifying party's request and at its expense) the provision to the indemnifying party of records and information which are reasonably relevant respect to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim Action without the indemnifying party's prior written consent (of the other, which consent shall not be unreasonably withheld), delayed or conditioned. If In the indemnifying party assumes event the Indemnifying Party does not or ceases to conduct the defense of a Third such Action as provided in this Section 11.03, (x) the Indemnified Party Claimmay defend against, and consent to the entry of any judgment or enter into any settlement with respect to, such Action in any manner it may reasonably deem to be appropriate; provided, that the Indemnified Party shall not consent to the entry of any judgement or enter into any settlement with respect to such Action without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, delayed or conditioned; (y) subject to the limitations set forth in this Article XI, the indemnified party shall agree to any settlement, compromise or discharge of a Third Indemnifying Party Claim that will reimburse the indemnifying party may recommend Indemnified Party promptly and that by periodically for its terms obligates the indemnifying party to pay the full amount of the liability costs and expenses in connection with such Third Action and (z) subject to the limitations set forth in this Article XI, the Indemnifying Party Claim will remain responsible for any other Losses the Indemnified Party may suffer as a result of such Action. If the Indemnified Party or the Indemnifying Party presents to the other party any proposed entry of judgment or settlement to which the other party does not consent within ten business days, the non-consenting party shall, and hereby agrees to, indemnify the proposing party against all Losses relating to such Action to the extent in excess of the amount of such Losses based upon the proposed settlement. The indemnification provided by the immediately preceding sentence shall be in addition to that provided by the other provisions of this Article XI, shall be from the first dollar and shall not be subject to the limitations on Losses set forth in Sections 11.02(a) or (orb) or Section 11.04(b).
(b) After the Closing, this Article XI will provide the exclusive remedy for any breach or inaccuracy of any representation or warranty, or breach of any covenant or other agreement (other than those contained in Sections 2.03, 2.04, 5.05, 5.06, 5.09, 5.10, 6.01, 6.02, 6.04, 7.01, 13.06, 13.07 and 13.12 and Articles VIII and IX) set forth in this Agreement or in the case certificates delivered pursuant to Article X hereof or other claim based upon this Agreement. Without limiting the generality of the foregoing, Buyer and, effective at the Closing, the Company and its Subsidiaries, hereby waive all rights for contribution or any Third Party Claim other rights or recovery (except as otherwise provided in Section 11.02) with respect to Taxesany Losses arising under or relating to Environmental Laws, as to which the indemnifying party acknowledges whether now or hereafter in writing its obligation to make payment in full)effect, that releases the indemnified party completely in connection with such Third Party Claim (or, in the case it might have by statute or otherwise against Seller or any of any Third Party Claim with respect to Taxes, as to which the indemnifying party acknowledges in writing its obligation to make payment in full) and that would not otherwise materially and adversely affect the indemnified partyAffiliates. Notwithstanding the foregoing, the indemnifying party shall not be entitled neither Buyer nor Seller waives any rights it may have to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of counsel incurred make a claim alleging fraud by the indemnified other party, and each party may pursue any rights available to it at law or in defending equity with respect to any such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damagesclaim.
(c) In the event any indemnified party should have a claim against any indemnifying party under this Article VII that does not involve a Third Party Claim being asserted against or sought to be collected from such indemnified partyFor purposes of clarification, the indemnified party parties acknowledge and agree that this Section 11.03 shall deliver notice be enforced in accordance with its terms and that any indemnification claim for breach of such claim with reasonable promptness the covenants contained in this Section 11.03 shall not be subject to the indemnifying party. So long as the indemnified party provides notification to the indemnifying party prior to the termination of the obligation to indemnify as limitations on Losses set forth in clauses (i) and (ii) of Section 7.0511.02(a) or Section 11.02(b), as the failure by any indemnified party so to notify the indemnifying party shall not relieve the indemnifying party from any liability that it case may have to such indemnified party under this Article VIIbe, except to the extent that the indemnifying party demonstrates that it has been actually prejudiced by such failure. The indemnifying party and the indemnified party shall proceed in good faith to negotiate a resolution of any dispute with respect to such a claim and, if not resolved through negotiations, such dispute shall be resolved by litigation in an appropriate court of competent jurisdictionor Section 11.04(b).
(d) After the Closing, Section 7.01 shall constitute the exclusive remedy for any misrepresentation or breach of warranty contained in this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Consolidated Stores Corp /De/)
Procedures; Exclusivity. (a) In order for a The party seeking indemnification under Section 11.02 (the "indemnified partyIndemnified Party") agrees to be entitled give prompt written notice to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim made by any Person the party against whom indemnity is sought (the indemnified party (a "Third Party ClaimIndemnifying Party"), such indemnified party must notify the indemnifying party in writing (and in reasonable detail) of the Third assertion of any claim, or the commencement of any suit, action or proceeding in respect of which indemnity may be sought under such Section. The Indemnifying Party Claim promptly following receipt by may, and at its election shall, participate in and control the defense of any such indemnified party of written notice of suit, action or proceeding at its own expense. Except as otherwise provided in this Article 11, the Third Indemnifying Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the indemnifying party shall have been actually prejudiced as a result be liable under Section 11.02 for any settlement effected without its consent of such failure. Thereafterany claim, the indemnified party shall deliver to the indemnifying party, promptly after the indemnified party's receipt thereof, copies litigation or proceeding in respect of all notices and documents (including court papers) received by the indemnified party relating to the Third Party Claimwhich indemnity may be sought hereunder.
(b) If a Third The Indemnified Party Claim is made against an indemnified party, shall have the indemnifying party shall be entitled right to employ separate counsel in any action or claim and to participate in the defense thereof and, at the expense of the Indemnifying Party (i) if it so chooses, to assume the defense thereof with retention of such counsel selected has been specifically authorized by the indemnifying party; providedIndemnifying Party, however, that such or (ii) if the counsel is retained because the Indemnifying Party does not reasonably objected to by notify the indemnified party. Should the indemnifying party so elect to assume the defense Indemnified Party within twenty (20) days after receipt of a Third Party Claim, the indemnifying party shall not be liable claim notice that it elects to the indemnified party for any legal expenses incurred from and after the date of such assumption by the indemnified party in connection with undertake the defense thereof. If the indemnifying party assumes such defense, the indemnified party The Indemnified Person shall have the right to employ counsel at the Indemnified Party's own expense and participate in the defense thereof and to employ counselsuch action or claim, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof. If the indemnifying party chooses to defend including settlement or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnifying party's request and at its expense) the provision to the indemnifying party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the indemnifying party's prior written consent (which consent shall not be unreasonably withheld). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim (or, in the case of any Third Party Claim with respect to Taxes, as to which the indemnifying party acknowledges in writing its obligation to make payment in full), that releases the indemnified party completely in connection with such Third Party Claim (or, in the case of any Third Party Claim with respect to Taxes, as to which the indemnifying party acknowledges in writing its obligation to make payment in full) and that would not otherwise materially and adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damagestrial.
(c) In the event any indemnified party should have a claim against any indemnifying party under this Article VII that does not involve a Third Party Claim being asserted against or sought to be collected from such indemnified partyExcept as otherwise provided in Section 11.05, the indemnified party Indemnifying Party shall deliver notice obtain the prior written approval of the Indemnified Party before entering into any settlement, adjustment, or compromise of such claim with reasonable promptness or ceasing to defend against such claim that provides for any relief (i) other than the indemnifying party. So long as payment of monetary damages by the indemnified party provides notification to Indemnifying Party or (ii) which might adversely affect the indemnifying party prior to Indemnified Party or its business or operations, and the termination determination of whether and under what conditions such approval may be given shall be in the sole discretion of the obligation to indemnify as set forth in Section 7.05, the failure by any indemnified party so to notify the indemnifying party shall not relieve the indemnifying party from any liability that it may have to such indemnified party under this Article VII, except to the extent that the indemnifying party demonstrates that it has been actually prejudiced by such failure. The indemnifying party and the indemnified party shall proceed in good faith to negotiate a resolution of any dispute with respect to such a claim and, if not resolved through negotiations, such dispute shall be resolved by litigation in an appropriate court of competent jurisdictionIndemnified Party.
(d) If the Indemnifying Party does not assume control over the defense of such claim as provided in Section 11.03(a) within 30 days of receipt of notice thereof, the Indemnified Party shall have the right to defend the claim in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party, including the right to settle, adjust or compromise such claim.
(e) Except as otherwise specifically set forth in this Agreement, Buyer and its Affiliates (including, effective at the Closing without duplication, the Company or any Subsidiary) hereby waive all rights for contribution or other rights of recovery with respect to Damages arising under or relating to Environmental Laws that Buyer or any of the Affiliates may have by statute or otherwise against Seller or any of its Affiliates.
(f) After the Closing, Section 7.01 shall constitute 11.02 will provide the exclusive remedy for any misrepresentation or breach of representation or warranty (other than those contained in Article 8) or other claim arising under this Agreement.
Appears in 1 contract
Procedures; Exclusivity. (a) In order for a The party seeking indemnification under Section 11.02 (the "indemnified partyIndemnified Party") agrees to be entitled give prompt written notice to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim made by any Person the party against whom indemnity is sought (the indemnified party (a "Third Party ClaimIndemnifying Party"), such indemnified party must notify the indemnifying party in writing (and in reasonable detail) of the Third assertion of any claim, or the commencement of any suit, action or proceeding in respect of which indemnity may be sought under such Section. The Indemnifying Party Claim promptly following receipt by may, and at its election shall, participate in and control the defense of any such indemnified party of written notice of suit, action or proceeding at its own expense. Except as otherwise provided in this Article 11, the Third Indemnifying Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the indemnifying party shall have been actually prejudiced as a result be liable under Section 11.02 for any settlement effected without its consent of such failure. Thereafterany claim, the indemnified party shall deliver to the indemnifying party, promptly after the indemnified party's receipt thereof, copies litigation or proceeding in respect of all notices and documents (including court papers) received by the indemnified party relating to the Third Party Claimwhich indemnity may be sought hereunder.
(b) If a Third The Indemnified Party Claim is made against an indemnified party, shall have the indemnifying party shall be entitled right to employ separate counsel in any action or claim and to participate in the defense thereof and, at the expense of the Indemnifying Party (i) if it so chooses, to assume the defense thereof with retention of such counsel selected has been specifically authorized by the indemnifying party; providedIndemnifying Party, however, that such or (ii) if the counsel is retained because the Indemnifying Party does not reasonably objected to by notify the indemnified party. Should the indemnifying party so elect to assume the defense Indemnified Party within twenty (20) days after receipt of a Third Party Claim, the indemnifying party shall not be liable claim notice that it elects to the indemnified party for any legal expenses incurred from and after the date of such assumption by the indemnified party in connection with undertake the defense thereof. If the indemnifying party assumes such defense, the indemnified party The Indemnified Person shall have the right to employ counsel at the Indemnified Party's own expense and participate in the defense thereof and to employ counselsuch action or claim, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof. If the indemnifying party chooses to defend including settlement or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnifying party's request and at its expense) the provision to the indemnifying party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the indemnifying party's prior written consent (which consent shall not be unreasonably withheld). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim (or, in the case of any Third Party Claim with respect to Taxes, as to which the indemnifying party acknowledges in writing its obligation to make payment in full), that releases the indemnified party completely in connection with such Third Party Claim (or, in the case of any Third Party Claim with respect to Taxes, as to which the indemnifying party acknowledges in writing its obligation to make payment in full) and that would not otherwise materially and adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damagestrial.
(c) In the event any indemnified party should have a claim against any indemnifying party under this Article VII that does not involve a Third Party Claim being asserted against or sought to be collected from such indemnified partyExcept as otherwise provided in Section 11.05, the indemnified party Indemnifying Party shall deliver notice obtain the prior written approval of the Indemnified Party before entering into any settlement, adjustment, or compromise of such claim with reasonable promptness or ceasing to defend against such claim that provides for any relief (i) other than the indemnifying party. So long as payment of monetary damages by the indemnified party provides notification to Indemnifying Party or (ii) which might adversely affect the indemnifying party prior to Indemnified Party or its business or operations, and the termination determination of whether and under what conditions such approval may be given shall be in the sole discretion of the obligation to indemnify as set forth in Section 7.05, the failure by any indemnified party so to notify the indemnifying party shall not relieve the indemnifying party from any liability that it may have to such indemnified party under this Article VII, except to the extent that the indemnifying party demonstrates that it has been actually prejudiced by such failure. The indemnifying party and the indemnified party shall proceed in good faith to negotiate a resolution of any dispute with respect to such a claim and, if not resolved through negotiations, such dispute shall be resolved by litigation in an appropriate court of competent jurisdictionIndemnified Party.
(d) If the Indemnifying Party does not assume control over the defense of such claim as provided in Section 11.03(a) within 30 days of receipt of notice thereof, the Indemnified Party shall have the right to defend the claim in such 55 62 manner as it may deem appropriate at the cost and expense of the Indemnifying Party, including the right to settle, adjust or compromise such claim.
(e) Except as otherwise specifically set forth in this Agreement, Buyer and its Affiliates (including, effective at the Closing without duplication, the Company or any Subsidiary) hereby waive all rights for contribution or other rights of recovery with respect to Damages arising under or relating to Environmental Laws that Buyer or any of the Affiliates may have by statute or otherwise against Seller or any of its Affiliates.
(f) After the Closing, Section 7.01 shall constitute 11.02 will provide the exclusive remedy for any misrepresentation or breach of representation or warranty (other than those contained in Article 8) or other claim arising under this Agreement.
Appears in 1 contract
Procedures; Exclusivity. (a) In order for a The party seeking indemnification under Section 11.2 (the "indemnified partyIndemnified Party") agrees to be entitled give prompt written notice to the party against whom indemnity is sought (the "Indemnifying Party") setting forth in reasonable detail the assertion of any indemnification provided for under this Agreement claim, or the commencement of any suit, action or proceeding, in respect ofof which indemnity may be sought under such Section. The Indemnifying Party shall have 45 days after receipt of such notice (or five days prior to such lesser time period as is permitted by applicable law or administrative rule to contest such claim) to undertake, arising out through counsel of its own choosing and at its own expense, the settlement or involving a claim made by any Person against defense thereof, and the indemnified party (a "Third Indemnified Party Claim"), such indemnified party must notify the indemnifying party shall cooperate with it in writing (and in reasonable detail) of the Third Party Claim promptly following receipt by such indemnified party of written notice of the Third Party Claimconnection therewith; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure. Thereafter, the indemnified party shall deliver to the indemnifying party, promptly after the indemnified party's receipt thereof, copies of all notices and documents (including court papers) received by the indemnified party relating to the Third Indemnified Party Claim.
(b) If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to may participate in the such settlement or defense thereof andthrough counsel chosen by such Indemnified Party, if it so chooses, to assume the defense thereof with counsel selected by the indemnifying party; provided, however, provided that such counsel is not reasonably objected to by the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses incurred from and after the date of such assumption by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of such counsel employed shall be borne by the indemnified party for such Indemnified Party. The Indemnified Party shall not pay or settle any period during claim which the indemnifying party has not assumed the defense thereof. If the indemnifying party chooses to defend or prosecute a Third Indemnifying Party Claim, all the indemnified parties shall cooperate is contesting in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnifying party's request and at its expense) the provision to the indemnifying party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the indemnifying party's prior written consent (which consent shall not be unreasonably withheld). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim (or, in the case of any Third Party Claim with respect to Taxes, as to which the indemnifying party acknowledges in writing its obligation to make payment in full), that releases the indemnified party completely in connection with such Third Party Claim (or, in the case of any Third Party Claim with respect to Taxes, as to which the indemnifying party acknowledges in writing its obligation to make payment in full) and that would not otherwise materially and adversely affect the indemnified partygood faith. Notwithstanding the foregoing, the indemnifying party Indemnified Party shall have the right to pay or settle any such claim; provided that the terms of such settlement are not materially prejudicial to the Indemnifying Party, and that in such event the Indemnified Party shall be deemed to have waived any right of indemnity therefor by the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within 45 days after the receipt of the Indemnified Party's notice of a claim of indemnity hereunder (or five days prior to such lesser time period as is permitted by applicable law or administrative rule to contest such claim) that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not be entitled thereby waive any right to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of counsel incurred indemnity therefor by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damagesIndemnifying Party.
(c) In the event any indemnified party should have a claim against any indemnifying party under this Article VII that does not involve a Third Party Claim being asserted against or sought to be collected from such indemnified party, the indemnified party shall deliver notice of such claim with reasonable promptness to the indemnifying party. So long as the indemnified party provides notification to the indemnifying party prior to the termination of the obligation to indemnify as set forth in Section 7.05, the failure by any indemnified party so to notify the indemnifying party shall not relieve the indemnifying party from any liability that it may have to such indemnified party under this Article VII, except to the extent that the indemnifying party demonstrates that it has been actually prejudiced by such failure. The indemnifying party and the indemnified party shall proceed in good faith to negotiate a resolution of any dispute with respect to such a claim and, if not resolved through negotiations, such dispute shall be resolved by litigation in an appropriate court of competent jurisdiction.
(d) After the Closing, Section 7.01 shall constitute the exclusive remedy for any misrepresentation or breach of warranty contained in this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Magellan Health Services Inc)
Procedures; Exclusivity. (a) In order for With respect to claims or demands by third parties, whenever a party indemnified pursuant to Section 9.02 or 9.03 (an "Indemnified Party") shall have received notice that such a claim or demand has been asserted or threatened, which, if true, would be subject to an indemnity under Section 9.02 or 9.03 hereof, the Indemnified Party shall as soon as reasonably possible, and in any event within 30 days of receipt of such notice, notify the party responsible for such indemnification (the "indemnified partyIndemnifying Party") to be entitled to any indemnification provided for under this Agreement in respect of, arising out of such claim or involving a claim made by any Person against the indemnified party (a "Third Party Claim"), such indemnified party must notify the indemnifying party in writing (demand and in reasonable detail) of the Third Party Claim promptly following receipt by such indemnified party of written notice of the Third Party Claimall relevant facts within its knowledge which relate thereto; provided, however, that the failure of the Indemnified Party to give such notification timely notice hereunder shall not affect relieve the Indemnifying Party of its indemnification provided hereunder except obligations under this Agreement unless, and only to the extent that, lack of notice causes the indemnifying party shall claims for which the Indemnifying Party is obligated to be greater than they would have been actually prejudiced as a result had the Indemnified Party been given timely notice hereunder or materially prejudices the ability of the Indemnifying Party to defend such failureclaims. Thereafter, the indemnified party The Indemnifying Party shall deliver to the indemnifying party, promptly after the indemnified party's receipt thereof, copies of all notices and documents (including court papers) received by the indemnified party relating to the Third Party Claim.
(b) If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the indemnifying party; provided, however, that such counsel is not reasonably objected to by the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses incurred from and after the date of such assumption by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall then have the right to participate in the defense thereof and to employ counselright, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof. If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnifying party's request and at its expense) the provision to the indemnifying party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or but not the indemnifying party assumes the defense of a Third Party Claimobligation, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the indemnifying party's prior written consent (which consent shall not be unreasonably withheld). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim (or, in the case of any Third Party Claim with respect to Taxes, as to which the indemnifying party acknowledges in writing its obligation to make payment in full), that releases the indemnified party completely in connection with such Third Party Claim (or, in the case of any Third Party Claim with respect to Taxes, as to which the indemnifying party acknowledges in writing its obligation to make payment in full) and that would not otherwise materially and adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third such claim or demand. If the Indemnifying Party Claim (fails to assume the defense of any such claim or demand as soon as reasonably possible, or if the Indemnified Party reasonably determines that a conflict may arise in the defense of the Indemnified and Indemnifying Parties, then the Indemnified Party shall be liable for have the reasonable fees and expenses right to undertake the defense of any such claims or demands, at the expense of the Indemnifying Party, utilizing counsel incurred selected by the indemnified party in defending Indemnified Party. If the Indemnified Party undertakes the defense of any such Third claims or demands pursuant to the immediately preceding sentence, the Indemnified Party Claim) if shall give written notice to the Third Indemnifying Party Claim seeks an order, injunction of any settlement or other equitable relief compromise of any such claim or relief for other than money damages against demand prior to the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damagessettlement or compromise thereof.
(c) In the event any indemnified party should have a claim against any indemnifying party under this Article VII that does not involve a Third Party Claim being asserted against or sought to be collected from such indemnified party, the indemnified party shall deliver notice of such claim with reasonable promptness to the indemnifying party. So long as the indemnified party provides notification to the indemnifying party prior to the termination of the obligation to indemnify as set forth in Section 7.05, the failure by any indemnified party so to notify the indemnifying party shall not relieve the indemnifying party from any liability that it may have to such indemnified party under this Article VII, except to the extent that the indemnifying party demonstrates that it has been actually prejudiced by such failure. The indemnifying party and the indemnified party shall proceed in good faith to negotiate a resolution of any dispute with respect to such a claim and, if not resolved through negotiations, such dispute shall be resolved by litigation in an appropriate court of competent jurisdiction.
(db) After the Closing, Section 7.01 the indemnification provided for by this Article IX shall constitute the exclusive remedy for of each party to this Agreement with respect to any misrepresentation or breach of warranty contained in this Agreementmatter which is subject to indemnification hereunder.
Appears in 1 contract
Samples: Agreement of Purchase and Sale of Partnership Interests (Eastpoint Mall LTD Partnership)
Procedures; Exclusivity. (a) In order for a The party seeking indemnification under this Article VI (the "indemnified party"“Indemnified Party”) agrees to be entitled give prompt written notice to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim made by any Person the party against whom indemnity is sought (the indemnified party (a "Third Party Claim"), such indemnified party must notify the indemnifying party in writing (and in reasonable detail“Indemnifying Party”) of the Third Party Claim promptly following receipt by such indemnified party assertion of written notice any claim, or the commencement of the Third Party Claim; providedany suit, however, that action or proceeding in respect of which indemnity may be sought under this Article VI. The failure to give such notification prompt written notice shall not affect not, however, relieve the Indemnifying Party of its indemnification provided hereunder obligations, except and only to the extent that the indemnifying party shall have been actually prejudiced as a result Indemnifying Party forfeits rights or defenses by reason of such failure. ThereafterSuch notice by the Indemnified Party shall describe the claim in reasonable detail, the indemnified party shall deliver to the indemnifying party, promptly after the indemnified party's receipt thereof, include copies of all notices material written evidence thereof and documents (including court papers) received shall indicate the estimated amount, if reasonably practicable, of the Damages that has been or may be sustained by the indemnified party relating Indemnified Party. The Indemnifying Party shall have the option to participate in and control the Third defense of any such suit, action or proceeding at its own expense and the Indemnified Party Claimshall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any claim, it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such claim in the name and on behalf of the Indemnified Party. The Indemnifying Party shall not be liable under this Article VI for any settlement effected without its consent of any claim, litigation or proceeding in respect of which indemnity may be sought hereunder.
(b) If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the indemnifying party; provided, however, The parties acknowledge and agree that such counsel is not reasonably objected to by the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses incurred from and after the date of such assumption by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof. If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnifying party's request and at its expense) the provision to the indemnifying party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the indemnifying party's prior written consent (which consent shall not be unreasonably withheld). If the indemnifying party assumes the defense of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third Party Claim (or, in the case of any Third Party Claim with respect to Taxes, as to which the indemnifying party acknowledges in writing its obligation to make payment in full), that releases the indemnified party completely in connection with such Third Party Claim (or, in the case of any Third Party Claim with respect to Taxes, as to which the indemnifying party acknowledges in writing its obligation to make payment in full) and that would not otherwise materially and adversely affect the indemnified party. Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of counsel incurred by the indemnified party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages.
(c) In the event any indemnified party should have a claim against any indemnifying party under this Article VII that does not involve a Third Party Claim being asserted against or sought to be collected from such indemnified party, the indemnified party shall deliver notice of such claim with reasonable promptness to the indemnifying party. So long as the indemnified party provides notification to the indemnifying party prior to the termination of the obligation to indemnify as set forth in Section 7.05, the failure by any indemnified party so to notify the indemnifying party shall not relieve the indemnifying party from any liability that it may have to such indemnified party under this Article VII, except to the extent that the indemnifying party demonstrates that it has been actually prejudiced by such failure. The indemnifying party and the indemnified party shall proceed in good faith to negotiate a resolution of any dispute with respect to such a claim and, if not resolved through negotiations, such dispute shall be resolved by litigation in an appropriate court of competent jurisdiction.
(d) After the Closing, Section 7.01 shall constitute this Article VI will provide the sole and exclusive remedy for any misrepresentation or breach of warranty contained any representation, warranty, covenant or other agreement or other claim arising out of this Agreement or the transactions contemplated hereby. In furtherance of the foregoing, each party hereby waives, to the fullest extent permitted under law, any and all rights, claims and causes of action for any breach of any representation, warranty, covenant or other agreement or other claim arising out of this Agreement or the transactions contemplated hereby it may have against the other parties hereto and their Affiliates and each of their respective representatives arising under or based upon any law, except pursuant to the indemnification provisions set forth in this AgreementArticle VI.
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