Procedures for Claims. (a) If at any time prior to the expiration of the applicable survival period for a representation or warranty in Section 8.1, an Indemnified Party (or Seller or Buyer, as applicable, on behalf thereof) determines in good faith that it has a bona fide claim for indemnification pursuant to this ARTICLE VIII, such Indemnified Party may deliver to the Indemnifying Party a certificate signed by any officer of the Indemnified Party (any certificate delivered in accordance with the provisions of this Section 8.9(a), an “Officer’s Claim Certificate”): (i) stating that an Indemnified Party has a claim for indemnification pursuant to this ARTICLE VIII; (ii) to the extent possible, containing a good faith non-binding, preliminary estimate of the amount to which such Indemnified Party claims to be entitled to receive as a claim for indemnification pursuant to this ARTICLE VIII, which shall be the amount of Losses such Indemnified Party claims to have so incurred or suffered or could reasonably be expected to incur or suffer; and (iii) specifying in reasonable detail (based upon the information then possessed by the Indemnified Party) the material facts known to the Indemnified Party giving rise to such claim. No delay in providing such Officer’s Claim Certificate prior to the expiration of the applicable survival period for a representation or warranty in Section 8.1 shall affect an Indemnified Party’s rights hereunder, unless (and then only to the extent that) the Indemnifying Party is materially prejudiced thereby. (b) At the time of delivery of any Officer’s Claim Certificate to the Indemnifying Party, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of the Indemnified Party. (c) If the Indemnifying Party in good faith objects to any claim made by an Indemnified Party in any Officer’s Claim Certificate, then the Indemnifying Party shall deliver a written notice (a “Claim Dispute Notice”) to the Indemnified Party during the 30-day period commencing upon receipt by the Indemnifying Party of the Officer’s Claim Certificate. A duplicate copy of such Claim Dispute Notice shall be delivered to the Escrow Agent by or on behalf of the Indemnifying Party. The Claim Dispute Notice shall set forth in reasonable detail, if and to the extent that such detail is available based upon the information available to such Indemnifying Party at such time, the principal basis for the dispute of any claim made by the Indemnified Party in the Officer’s Claim Certificate. If the Indemnifying Party does not deliver a Claim Dispute Notice to the Indemnified Party prior to the expiration of such 30-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in the Indemnified Party’s favor for purposes of this ARTICLE VIII on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the Escrow Account, then the Indemnified Party may direct the Escrow Agent to deliver cash from the Escrow Account to the Indemnified Party in accordance with this Section 8.9(c). (d) If the Indemnifying Party delivers a Claim Dispute Notice, then the Indemnified Party and the Indemnifying Party shall attempt in good faith to resolve any such objections raised by the Indemnifying Party in such Claim Dispute Notice. If the Indemnified Party and the Indemnifying Party agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by the Indemnified Party and the Indemnifying Party shall be prepared and signed by both parties and, if cash remains in the Escrow Account, promptly delivered to the Escrow Agent, together with a Joint Direction (as defined in the Escrow Agreement) from Buyer and Seller pursuant to Section 4(b) of the Escrow Agreement directing the Escrow Agent to distribute cash from the Escrow Account in accordance with the terms of such memorandum. (e) If no such resolution can be reached during the 45-day period following the Indemnified Party’s receipt of a given Claim Dispute Notice, then upon the expiration of such 45-day period, either the Indemnified Party or the Indemnifying Party may bring suit to resolve the objection in accordance with Section 9.1 and Section 9.13.
Appears in 3 contracts
Samples: Stock Purchase Agreement (SMART Global Holdings, Inc.), Stock Purchase Agreement (SMART Global Holdings, Inc.), Stock Purchase Agreement (SMART Global Holdings, Inc.)
Procedures for Claims. (a) If at In order for an Indemnified Party to be entitled to any time prior indemnification provided for under this ARTICLE XI in respect of, arising out of, or involving a claim made by any third party against the Indemnified Party (a “Third Party Claim”), the Indemnified Party must notify the Indemnifying Party in writing of the Third Party Claim (a “Third Party Claim Notice”) promptly following receipt by such Indemnified Party of notice of the Third Party Claim, which notification, to be a valid Third Party Claim Notice, with the effect set forth in Sections 11.1 and 11.2 (a “Valid Third Party Claim Notice”), must specify in reasonable detail the nature of the claims and be accompanied by a copy of the written notice (if any) of the third party claimant to the Indemnified Party asserting the Third Party Claim; provided, that the failure to provide such notice promptly (so long as a Valid Third Party Claim Notice is given before the expiration of the applicable survival period for a representation or warranty in Section 8.1, an Indemnified Party (or Seller or Buyer, as applicable, on behalf thereofapplicable to such claims) determines in good faith that it has a bona fide claim for indemnification pursuant to this ARTICLE VIII, such Indemnified Party may deliver to shall not affect the obligations of the Indemnifying Party a certificate signed by any officer of the Indemnified Party (any certificate delivered in accordance with the provisions of this Section 8.9(a), an “Officer’s Claim Certificate”):
(i) stating that an Indemnified Party has a claim for indemnification pursuant to this ARTICLE VIII;
(ii) hereunder except to the extent possible, containing a good faith non-binding, preliminary estimate of the amount to which such Indemnified Party claims to be entitled to receive as a claim for indemnification pursuant to this ARTICLE VIII, which shall be the amount of Losses such Indemnified Party claims to have so incurred or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed by the Indemnified Party) the material facts known to the Indemnified Party giving rise to such claim. No delay in providing such Officer’s Claim Certificate prior to the expiration of the applicable survival period for a representation or warranty in Section 8.1 shall affect an Indemnified Party’s rights hereunder, unless (and then only to the extent that) the Indemnifying Party is materially prejudiced thereby. The Indemnified Party shall promptly deliver to the Indemnifying Party copies of all other notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim.
(b) At The Indemnifying Party shall have the right to participate in or, by giving written notice to the Indemnified Party, assume the defense against any such Third Party Claim (including to conduct and control any Proceedings or settlement negotiations) with counsel of its own choosing, in each case at the Indemnifying Party’s expense. The Indemnified Party shall have the right to participate in the defense of any Third Party Claim and to employ its own counsel (it being understood that the Indemnifying Party shall control such defense), at its own cost and expense. Prior to the time the Indemnified Party is notified by the Indemnifying Party as to whether the Indemnifying Party will assume the defense of delivery a Third Party Claim, the Indemnified Party shall take all actions reasonably necessary to timely preserve the collective rights of any Officer’s Claim Certificate the Parties with respect to such Third Party Claim, including responding timely to legal process. If the Indemnifying Party, a duplicate copy in the reasonable opinion of such Officer’s Claim Certificate shall be delivered counsel to the Escrow Agent by or on behalf of the Indemnified Party.
, fails to diligently prosecute the defense of such Third Party Claim, or declines to assume the defense of a Third Party Claim (cor shall fail to notify the Indemnified Party of its election to defend such Third Party Claim) If within 30 days after the giving by the Indemnified Party to the Indemnifying Party in good faith objects to any claim made by an of a Valid Third Party Claim Notice, the Indemnified Party in any Officer’s shall defend against the Third Party Claim Certificate, then and the Indemnifying Party shall deliver a written notice (a “Claim Dispute Notice”) be liable to the Indemnified Party during the 30-day period commencing upon receipt for all reasonable fees and expenses incurred by the Indemnifying Indemnified Party in the defense of the Officer’s Claim Certificate. A duplicate copy Third Party Claim, including the reasonable fees and expenses of such Claim Dispute Notice shall be delivered to counsel employed by the Escrow Agent by or on behalf of the Indemnifying Indemnified Party. The Claim Dispute Notice shall set forth in reasonable detail, if and to the extent that such detail is available based upon the information available to such Indemnifying Party at such time, the principal basis for the dispute of any claim made by is responsible to indemnify the Indemnified Party for such Third Party Claim under this Agreement. 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 or delayed. Regardless of which Party assumes the defense of a Third Party Claim, the Parties agree to cooperate in good faith and in all respects with one another and each other’s Representatives (including counsel) in connection with the Officerinvestigation, negotiation, settlement, trial and/or defense of any Third Party Claim or Proceeding (and any appeal arising therefrom). Such cooperation shall include providing records and information that are relevant to such Third Party Claim, and making employees and officers available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder and to act as a witness or respond to legal process. The Parties shall cooperate with each other in any notifications to and information requests of any insurers.
(c) In order for an Indemnified Party to be entitled to any indemnification provided for under this ARTICLE XI in respect of a claim that does not involve a Third Party Claim being asserted against such Indemnified Party (an “Other Claim”), the Indemnified Party must promptly notify the Indemnifying Party in writing of such Other Claim (the “Other Claim Notice”), which notification, to be a valid Other Claim Notice, with the effect set forth in Sections 11.1 and 11.2 (a “Valid Other Claim Notice”), must certify that the Indemnified Party has in good faith sustained Damages (and a good faith estimate of such Damages) with respect to such claim, and specify in reasonable detail the nature of the claim. The failure by any Indemnified Party to notify the Indemnifying Party promptly of an Other Claim Notice (so long as a Valid Other Claim Notice is given before the expiration of the survival period applicable to such claims) all not relieve the Indemnifying Party from any liability that it may have to such Indemnified Party under Section 11.2, except to the extent that the Indemnifying Party has been materially prejudiced by such failure. The Indemnifying Party shall have 45 days after receipt of such notice to respond in writing to such Other Claim. The Indemnified Party shall allow the Indemnifying Party and its professional advisors to investigate the matter or circumstance alleged to give rise to the Other Claim and to investigate whether and to what extent any amount is payable in respect of the Other Claim, and the Indemnified Party shall assist the Indemnifying Party’s Claim Certificateinvestigation by giving such information and assistance as the Indemnifying Party or any of its professional advisors may reasonably request. If the Indemnifying Party does not deliver a Claim Dispute Notice to the Indemnified Party prior to the expiration of such 30-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in the Indemnified Party’s favor for purposes of this ARTICLE VIII on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the Escrow Account, then the Indemnified Party may direct the Escrow Agent to deliver cash from the Escrow Account to the Indemnified Party in accordance with this Section 8.9(c).
(d) If the Indemnifying Party delivers a Claim Dispute Notice, then the Indemnified Party and the Indemnifying Party shall attempt in good faith to resolve any such objections raised by the Indemnifying Party in such Claim Dispute Notice. If the Indemnified Party and the Indemnifying Party agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by the Indemnified Party and the Indemnifying Party shall be prepared and signed by both parties and, if cash remains in the Escrow Account, promptly delivered to the Escrow Agent, together with a Joint Direction (as defined in the Escrow Agreement) from Buyer and Seller pursuant to Section 4(b) of the Escrow Agreement directing the Escrow Agent to distribute cash from the Escrow Account in accordance with the terms of such memorandum.
(e) If no such resolution can be reached during the 45-day period following the Indemnified Party’s receipt of a given Claim Dispute Notice, then upon the expiration of so respond within such 45-day period, either the Indemnifying Party shall be deemed to have rejected such claim, in which case the Indemnified Party or shall be free to pursue such remedies as may be available to the Indemnifying Indemnified Party may bring suit on the terms and subject to resolve the objection in accordance with Section 9.1 and Section 9.13provisions of this Agreement.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement, Membership Interest Purchase Agreement (WillScot Corp)
Procedures for Claims. (a) If at In order for an Indemnified Party to be entitled to any time prior indemnification provided for under this Article 8 in respect of, arising out of or involving a claim made by any third party against the Indemnified Party (a “Third-Party Claim”), the Indemnified Party must notify the Indemnifying Party in writing of the Third-Party Claim (a “Third-Party-Claim Notice”) promptly following receipt by such Indemnified Party of written notice of the Third-Party Claim, which notification, to be a valid Third-Party Claim Notice, with the effect set forth in Sections 8.1 and 8.2 (a “Valid Third-Party Claim Notice”), must be accompanied by a copy of the written notice, if any, of the third party claimant to the Indemnified Party asserting the Third-Party Claim; provided, that the failure to provide such notice promptly (so long as a Valid Third-Party Claim Notice is given before the expiration of the applicable survival period for a representation or warranty set forth in Section 8.1, an ) shall not affect the obligations of the Indemnifying Party hereunder except to the extent the Indemnifying Party is prejudiced thereby. The Indemnified Party (or Seller or Buyer, as applicable, on behalf thereof) determines in good faith that it has a bona fide claim for indemnification pursuant to this ARTICLE VIII, such Indemnified Party may shall deliver to the Indemnifying Party a certificate signed copies of all other notices and documents (including court papers), if any, received by any officer of the Indemnified Party (any certificate delivered in accordance with the provisions of this Section 8.9(a), an “Officer’s Claim Certificate”):
(i) stating that an Indemnified Party has a claim for indemnification pursuant to this ARTICLE VIII;
(ii) relating to the extent possible, containing a good faith nonThird-binding, preliminary estimate of the amount to which such Indemnified Party claims to be entitled to receive as a claim for indemnification pursuant to this ARTICLE VIII, which shall be the amount of Losses such Indemnified Party claims to have so incurred or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed by the Indemnified Party) the material facts known to the Indemnified Party giving rise to such claim. No delay in providing such Officer’s Claim Certificate prior to the expiration of the applicable survival period for a representation or warranty in Section 8.1 shall affect an Indemnified Party’s rights hereunder, unless (and then only to the extent that) the Indemnifying Party is materially prejudiced therebyClaim.
(b) At The Indemnifying Party shall have the time right to defend against any such Third-Party Claim (including to conduct any proceedings or settlement negotiations) with counsel of delivery its own choosing. The Indemnified Party shall have the right to participate in the defense of any Officer’s Third-Party Claim Certificate (including the right to participate in any settlement negotiations) and to employ its own counsel (it being understood that the Indemnifying Party shall control such defense and settlement negotiations), at its own expense, provided, however, that if the Indemnified Party reasonably concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have adversely conflicting interests with respect to such Third-Party Claim, the reasonable fees and expenses of counsel to the Indemnifying Party, a duplicate copy of such Officer’s Claim Certificate Indemnified Party solely in connection therewith shall be delivered considered “Damages” for purposes of this Agreement; provided, however, that in no event shall the Indemnifying Party be responsible for the fees and expenses of more than one counsel for all Indemnified Parties. Whether or not the Indemnified Party participates in the defense of any Third-Party Claim, the Indemnified Party shall be entitled to reasonable notice of all court appearances and settlement negotiations and, to the Escrow Agent extent requested by or on behalf of the Indemnified Party.
(c) , copies of all proceedings filed with any Governmental Authority in connection with such Third-Party Claim. Prior to the time the Indemnified Party is notified by the Indemnifying Party as to whether the Indemnifying Party will assume the defense of a Third-Party Claim, the Indemnified Party shall take all actions reasonably necessary to timely preserve the collective rights of the parties with respect to such Third-Party Claim, including responding timely to legal process. If the Indemnifying Party in good faith objects shall decline to any claim made by an assume the defense of a Third-Party Claim (or shall fail to notify the Indemnified Party in any Officer’s of its election to defend such Third-Party Claim) within 30 days after the giving by the Indemnified Party to the Indemnifying Party of a Valid Third-Party Claim CertificateNotice with respect to the Third Party Claim, then the Indemnified Party shall defend against the Third-Party Claim and the Indemnifying Party shall deliver a written notice (a “Claim Dispute Notice”) be liable to the Indemnified Party during the 30-day period commencing upon receipt for all reasonable fees and expenses incurred by the Indemnifying Indemnified Party in the defense of the Officer’s Claim Certificate. A duplicate copy Third-Party Claim, including the reasonable fees and expenses of such Claim Dispute Notice shall be delivered to counsel employed by the Escrow Agent by or on behalf of the Indemnifying Indemnified Party. The Claim Dispute Notice shall set forth in reasonable detail, if and to the extent that the Indemnifying Party is responsible to indemnify for such detail is available based upon Third-Party Claim, and such fees and expenses shall be considered “Damages” for purposes of this Agreement. Regardless of which party assumes the defense of a Third-Party Claim, the parties agree to cooperate with one another in connection therewith. Such cooperation shall include providing records and information available that are relevant to such Third-Party Claim, and making employees and officers available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder and to act as a witness or respond to legal process. Whether or not the Indemnifying Party at such timeassumes the defense of a Third-Party Claim, the principal basis for the dispute of any claim made by the Indemnified Party shall not admit any liability, consent to the entry of judgment with respect to, or settle, compromise or discharge, such Third-Party Claim without the Indemnifying Party’s prior written consent. If the Indemnifying Party assumes the defense of any Third-Party Claim, the Indemnifying Party shall have the right to consent to the entry of judgment with respect to, or otherwise settle, compromise or discharge, such Third-Party Claim; provided, however, that the Indemnifying Party shall not, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, delayed or conditioned), consent to the entry of judgment with respect to, or otherwise settle, compromise or discharge, any Third-Party Claim if such judgment, settlement, compromise or discharge involves equitable or other non-monetary damages or otherwise requires the Indemnified Party or any of its Affiliates to pay any amount to any Person, including the Indemnifying Party, or to take any action or refrain from taking any action (other than the execution of a customary release or covenant not to xxx).
(c) In order for an Indemnified Party to be entitled to any indemnification provided for under this Article 8 in respect of a claim that does not involve a Third-Party Claim being asserted against such Indemnified Party (an “Other Claim”), the Officer’s Indemnified Party must promptly notify the Indemnifying Party in writing of such Other Claim Certificate(the “Other Claim Notice”), which notification, to be a Valid Other Claim Notice, with the effect set forth in Sections 8.1 and 8.2 (a “Valid Other Claim Notice”), must certify that the Indemnified Party has in good faith already sustained some (though not necessarily all) Damages with respect to such claim. The failure by any Indemnified Party to notify the Indemnifying Party promptly (so long as a Valid Other Claim Notice is given before the expiration of the applicable period set forth in Section 8.1) shall not relieve the Indemnifying Party from any liability that it may have to such Indemnified Party under Section 8.2, except to the extent that the Indemnifying Party has been prejudiced by such failure. If the Indemnifying Party does not deliver a Claim Dispute Notice to the Indemnified Party prior to the expiration of such 30-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in the Indemnified Party’s favor for purposes of this ARTICLE VIII on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the Escrow Account, then the Indemnified Party may direct the Escrow Agent to deliver cash from the Escrow Account to notify the Indemnified Party in accordance with this Section 8.9(c).
(d) If writing within 60 days from its receipt of an Other Claim Notice that the Indemnifying Party delivers a disputes such Other Claim, the Other Claim Dispute Notice, then specified by the Indemnified Party and in the Other Claim Notice shall be deemed a liability of the Indemnifying Party hereunder and, within 20 days of such date shall attempt in good faith to resolve any such objections raised be paid by the Indemnifying Party in such Claim Dispute Notice. If to the Indemnified Party Party. Any final and non-appealable judgment entered or settlement agreed upon with respect to a Other Claim shall be binding upon the Indemnifying Party agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by the Indemnified Party and the Indemnifying Party shall be prepared and signed by both parties and, if cash remains in the Escrow Account, promptly delivered to the Escrow Agent, together with a Joint Direction (as defined in the Escrow Agreement) from Buyer and Seller pursuant to Section 4(b) paid within 10 days of the Escrow Agreement directing date of the Escrow Agent to distribute cash from the Escrow Account in accordance with the terms of such memorandumrelevant final judgment or settlement agreement.
(e) If no such resolution can be reached during the 45-day period following the Indemnified Party’s receipt of a given Claim Dispute Notice, then upon the expiration of such 45-day period, either the Indemnified Party or the Indemnifying Party may bring suit to resolve the objection in accordance with Section 9.1 and Section 9.13.
Appears in 2 contracts
Samples: Real Estate Purchase Agreement (Material Sciences Corp), Asset Purchase Agreement (Material Sciences Corp)
Procedures for Claims. (a) If at In the case of any time prior to the expiration claim for indemnification arising from a claim of the applicable survival period for a representation or warranty in Section 8.1third party, an Indemnified Party (or Seller or Buyershall give prompt written notice, as applicable, on behalf thereof) determines in good faith that it has a bona fide claim for indemnification pursuant to this ARTICLE VIII, no event more than 10 days following such Indemnified Party may deliver Party's receipt of such claim or demand, to the Indemnifying Party a certificate signed by of any officer of the Indemnified Party (any certificate delivered in accordance with the provisions of this Section 8.9(a), an “Officer’s Claim Certificate”):
(i) stating that an Indemnified Party has a claim for indemnification pursuant to this ARTICLE VIII;
(ii) to the extent possible, containing a good faith non-binding, preliminary estimate of the amount to or demand which such Indemnified Party claims has knowledge and as to be entitled which it may request indemnification hereunder. The Indemnifying Party shall have the right to receive as a defend and to direct the defense against any such claim for indemnification pursuant to this ARTICLE VIIIor demand, which shall be in its name or in the amount name of Losses such Indemnified Party claims to have so incurred or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed by the Indemnified Party) , as the material facts known to case may be, at the Indemnified Party giving rise to such claim. No delay in providing such Officer’s Claim Certificate prior to the expiration expense of the applicable survival period for a representation or warranty in Section 8.1 shall affect an Indemnified Party’s rights hereunder, unless (and then only to the extent that) the Indemnifying Party is materially prejudiced thereby.
(b) At the time of delivery of any Officer’s Claim Certificate to the Indemnifying Party, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of the Indemnified Party.
(c) If the Indemnifying Party in good faith objects to any claim made by an Indemnified Party in any Officer’s Claim Certificate, then the Indemnifying Party shall deliver a written notice (a “Claim Dispute Notice”) to the Indemnified Party during the 30-day period commencing upon receipt and with counsel selected by the Indemnifying Party of unless (i) such claim or demand seeks an order, injunction or other equitable relief against the Officer’s Claim Certificate. A duplicate copy of such Claim Dispute Notice shall be delivered to the Escrow Agent by Indemnified Party, or on behalf of the Indemnifying Party. The Claim Dispute Notice shall set forth in reasonable detail, if and to the extent that such detail is available based upon the information available to such Indemnifying Party at such time, the principal basis for the dispute of any claim made by (ii) the Indemnified Party in the Officer’s Claim Certificate. If the Indemnifying Party does not deliver shall have reasonably concluded that (x) there is a Claim Dispute Notice to the Indemnified Party prior to the expiration conflict of such 30-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in the Indemnified Party’s favor for purposes of this ARTICLE VIII on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the Escrow Account, then the Indemnified Party may direct the Escrow Agent to deliver cash from the Escrow Account to the Indemnified Party in accordance with this Section 8.9(c).
(d) If the Indemnifying Party delivers a Claim Dispute Notice, then interest between the Indemnified Party and the Indemnifying Party shall attempt in good faith the conduct of the defense of such claim or demand or (y) the Indemnified Party has one or more defenses not available to resolve any such objections raised by the Indemnifying Party. Notwithstanding anything in this Agreement to the contrary, the Indemnified Party shall, at the expense of the Indemnifying Party, cooperate with the Indemnifying Party, and keep the Indemnifying Party fully informed, in the defense of such Claim Dispute Noticeclaim or demand. If the The Indemnified Party and shall have the right to participate in the defense of any claim or demand with counsel employed at its own expense; provided, however, that, in the case of any claim or demand described in clause (i) or (ii) of the second preceding sentence or as to which the Indemnifying Party agree shall not in fact have employed counsel to a resolution assume the defense of such objectionclaim or demand, then a memorandum setting forth the matters conclusively determined reasonable fees and disbursements of such counsel shall be at the expense of the Indemnifying Party. The Indemnifying Party shall have no indemnification obligations with respect to any such claim or demand which shall be settled by the Indemnified Party and without the prior written consent of the Indemnifying Party Party, which consent shall not be prepared and signed by both parties and, if cash remains in the Escrow Account, promptly delivered to the Escrow Agent, together with a Joint Direction (as defined in the Escrow Agreement) from Buyer and Seller pursuant to Section 4(b) of the Escrow Agreement directing the Escrow Agent to distribute cash from the Escrow Account in accordance with the terms of such memorandumunreasonably withheld or delayed.
(e) If no such resolution can be reached during the 45-day period following the Indemnified Party’s receipt of a given Claim Dispute Notice, then upon the expiration of such 45-day period, either the Indemnified Party or the Indemnifying Party may bring suit to resolve the objection in accordance with Section 9.1 and Section 9.13.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Cimco Inc /De/), Asset Purchase Agreement (Microsemi Corp)
Procedures for Claims. (a) If at any time prior to the expiration of the applicable survival period for a representation or warranty in Section 8.1, an Indemnified Party (or Seller or Buyer, as applicable, on behalf thereof) determines in good faith that it has a bona fide claim for indemnification pursuant to this ARTICLE VIII, such Indemnified Party may deliver to the Indemnifying Party a certificate signed by any officer of the Indemnified Party (any certificate delivered in accordance with the provisions of this Section 8.9(a), an “Officer’s Claim Certificate”):
(i) stating that In order for an Indemnified Party has Indemnitee to be entitled to any remedy provided for under this Article 6 in respect of, arising out of or involving a claim for indemnification pursuant to this ARTICLE VIII;made by any Third Party against the Indemnitee or an Affiliate (a "Third Party Claim"), the Indemnitee must notify the Indemnitor in writing of the Third Party Claim (a "Third Party Claim Notice") promptly following receipt by such Indemnitee of written or oral notice of the Third
(ii) The Indemnitor shall have the right to defend against any such Third Party Claim (including the conduct of any proceedings or settlement negotiations, provided that the Indemnitor shall not settle any Third Party Claim without the Indemnitee's consent, which consent shall not be unreasonably withheld or delayed) with counsel of the Indemnitor's own choosing. The Indemnitee shall have the right to participate in the defense of any Third Party Claim and to employ its own counsel (it being understood that the Indemnitor shall control such defense), at the Indemnitee's own expense. Prior to the extent possibletime the Indemnitee is notified by the Indemnitor as to whether the Indemnitor will assume the defense of a Third Party Claim, containing a good faith non-binding, preliminary estimate the Indemnitee shall take all actions reasonably necessary to timely preserve the collective rights of the amount parties with respect to which such Indemnified Third Party claims Claim, including responding timely to be entitled legal process. If the Indemnitor shall decline to receive as assume the defense of a claim for indemnification pursuant Third Party Claim (or shall fail to this ARTICLE VIIInotify the Indemnitee of its election to defend such Third Party Claim) within 30 days after the giving by the Indemnitee to the Indemnitor of a Valid Third Party Claim Notice with respect to the Third Party Claim, which the Indemnitee shall defend against the Third Party Claim and the Indemnitor shall be liable to the amount of Losses such Indemnified Party claims to have so Indemnitee for all reasonable fees and expenses incurred or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed by the Indemnified Party) Indemnitee in the material facts known to the Indemnified Party giving rise to such claim. No delay in providing such Officer’s Claim Certificate prior to the expiration defense of the applicable survival period for a representation or warranty in Section 8.1 shall affect an Indemnified Party’s rights hereunderThird Party Claim, unless (including the reasonable fees and then only to the extent that) the Indemnifying Party is materially prejudiced thereby.
(b) At the time expenses of delivery of any Officer’s Claim Certificate to the Indemnifying Party, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of the Indemnified Party.
(c) If the Indemnifying Party in good faith objects to any claim made by an Indemnified Party in any Officer’s Claim Certificate, then the Indemnifying Party shall deliver a written notice (a “Claim Dispute Notice”) to the Indemnified Party during the 30-day period commencing upon receipt counsel employed by the Indemnifying Party of the Officer’s Claim Certificate. A duplicate copy of such Claim Dispute Notice shall be delivered to the Escrow Agent by or on behalf of the Indemnifying Party. The Claim Dispute Notice shall set forth in reasonable detailIndemnitee, if and to the extent that the Indemnitor is responsible to indemnify for such detail is available based upon Third Party Claim. Regardless of which party assumes the defense of a Third Party Claim, the parties agree to cooperate with one another in connection therewith. Such cooperation shall include providing records and information available which are relevant to such Indemnifying Third Party at such timeClaim, and which are not required by law to be kept confidential and making employees and officers available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder and to act as a witness or respond to legal process. Whether or not the Indemnitor assumes the defense of a Third Party Claim, the principal basis for Indemnitee shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the dispute of any claim made by the Indemnified Party in the Officer’s Claim Certificate. If the Indemnifying Party does Indemnitor's prior written consent (which consent will not deliver a Claim Dispute Notice to the Indemnified Party prior to the expiration of such 30-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in the Indemnified Party’s favor for purposes of this ARTICLE VIII on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the Escrow Account, then the Indemnified Party may direct the Escrow Agent to deliver cash from the Escrow Account to the Indemnified Party in accordance with this Section 8.9(cunreasonably withheld or delayed).
(db) If the Indemnifying Party delivers a Claim Dispute Notice, then the Indemnified Party and the Indemnifying Party shall attempt In order for an Indemnitee to be entitled to any indemnification provided for under this Article 6 in good faith to resolve any such objections raised by the Indemnifying Party in such Claim Dispute Notice. If the Indemnified Party and the Indemnifying Party agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by the Indemnified Party and the Indemnifying Party shall be prepared and signed by both parties and, if cash remains in the Escrow Account, promptly delivered to the Escrow Agent, together with a Joint Direction (as defined in the Escrow Agreement) from Buyer and Seller pursuant to Section 4(b) of the Escrow Agreement directing the Escrow Agent to distribute cash from the Escrow Account in accordance with the terms of such memorandum.
(e) If no such resolution can be reached during the 45-day period following the Indemnified Party’s receipt respect of a given claim as to which a Third Party Claim Dispute Noticehas not been asserted against such Indemnitee (an "Other Claim"), then upon the expiration of such 45-day period, either Indemnitee must promptly notify the Indemnified Party or the Indemnifying Party may bring suit to resolve the objection Indemnitor in accordance with Section 9.1 and Section 9.13.writing of
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Procedures for Claims. (a) If at In the case of any time prior to the expiration claim for indemnification arising from a claim of the applicable survival period for a representation or warranty in Section 8.1third party, an Indemnified Party (or Seller or Buyershall give prompt written notice, as applicable, on behalf thereof) determines in good faith that it has a bona fide claim for indemnification pursuant to this ARTICLE VIII, no event more than 10 days following such Indemnified Party may deliver Party's receipt of such claim or demand, to the Indemnifying Party a certificate signed by of any officer of the Indemnified Party (any certificate delivered in accordance with the provisions of this Section 8.9(a), an “Officer’s Claim Certificate”):
(i) stating that an claim or demand which such Indemnified Party has knowledge and as to which it may request indemnification hereunder; provided, however, that the Indemnifying Party shall not be relieved of its indemnification obligations pursuant to this sentence except only to the extent that the Indemnified Party's delay in giving such notice impairs the ability of the Indemnifying Party to defend against the claim or demand. Notwithstanding the immediately preceding sentence, all notices asserting a claim for indemnification based on a representation or warranty, to be effective, must be given in writing to the Indemnifying Party before the expiration of such representation or warranty pursuant to this ARTICLE VIII;
(ii) Section 10.1 and in accordance with Section 10.2(d)(ii). The Indemnifying Party shall have the right to defend and to direct the extent possibledefense against any such claim or demand, containing a good faith non-binding, preliminary estimate in its name or in the name of the amount to which such Indemnified Party claims to be entitled to receive as a claim for indemnification pursuant to this ARTICLE VIII, which shall be the amount of Losses such Indemnified Party claims to have so incurred or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed by the Indemnified Party) , as the material facts known to case may be, at the Indemnified Party giving rise to such claim. No delay in providing such Officer’s Claim Certificate prior to the expiration expense of the applicable survival period for a representation or warranty in Section 8.1 shall affect an Indemnified Party’s rights hereunder, unless (and then only to the extent that) the Indemnifying Party is materially prejudiced thereby.
(b) At the time of delivery of any Officer’s Claim Certificate to the Indemnifying Party, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of the Indemnified Party.
(c) If the Indemnifying Party in good faith objects to any claim made by an Indemnified Party in any Officer’s Claim Certificate, then the Indemnifying Party shall deliver a written notice (a “Claim Dispute Notice”) to the Indemnified Party during the 30-day period commencing upon receipt and with legal counsel selected by the Indemnifying Party of unless (i) such claim or demand seeks an order, injunction or other equitable relief against the Officer’s Claim Certificate. A duplicate copy of such Claim Dispute Notice shall be delivered to the Escrow Agent by Indemnified Party, or on behalf of the Indemnifying Party. The Claim Dispute Notice shall set forth in reasonable detail, if and to the extent that such detail is available based upon the information available to such Indemnifying Party at such time, the principal basis for the dispute of any claim made by (ii) the Indemnified Party in the Officer’s Claim Certificate. If the Indemnifying Party does not deliver shall have reasonably concluded that (x) there is a Claim Dispute Notice to the Indemnified Party prior to the expiration conflict of such 30-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in the Indemnified Party’s favor for purposes of this ARTICLE VIII on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the Escrow Account, then the Indemnified Party may direct the Escrow Agent to deliver cash from the Escrow Account to the Indemnified Party in accordance with this Section 8.9(c).
(d) If the Indemnifying Party delivers a Claim Dispute Notice, then interest between the Indemnified Party and the Indemnifying Party shall attempt in good faith the conduct of the defense of such claim or demand or (y) the Indemnified Party has one or more defenses not available to resolve any such objections raised by the Indemnifying Party. Notwithstanding anything in this Agreement to the contrary, the Indemnified Party shall, at the expense of the Indemnifying Party, cooperate with the Indemnifying Party, and keep the Indemnifying Party fully informed, in the defense of such Claim Dispute Noticeclaim or demand. If the The Indemnified Party and shall have the right to participate in the defense of any claim or demand with legal counsel employed at its own expense; provided, however, that, in the case of any claim or demand described in clause (i) or (ii) of the second preceding sentence or as to which the Indemnifying Party agree shall not in fact have employed legal counsel to a resolution assume the defense of such objectionclaim or demand, then a memorandum setting forth the matters conclusively determined reasonable fees and disbursements of such counsel shall be at the expense of the Indemnifying Party. The Indemnifying Party shall have no indemnification obligations with respect to any such claim or demand which shall be settled by the Indemnified Party and without the prior written consent of the Indemnifying Party Party, which consent shall not be prepared and signed by both parties and, if cash remains in the Escrow Account, promptly delivered to the Escrow Agent, together with a Joint Direction (as defined in the Escrow Agreement) from Buyer and Seller pursuant to Section 4(b) of the Escrow Agreement directing the Escrow Agent to distribute cash from the Escrow Account in accordance with the terms of such memorandumunreasonably withheld or delayed.
(e) If no such resolution can be reached during the 45-day period following the Indemnified Party’s receipt of a given Claim Dispute Notice, then upon the expiration of such 45-day period, either the Indemnified Party or the Indemnifying Party may bring suit to resolve the objection in accordance with Section 9.1 and Section 9.13.
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Procedures for Claims. (ai) If at In order for an indemnified party to be entitled to any time prior indemnification provided for under this Article XII in respect of, arising out of or involving a claim made by any third party against the indemnified party (a “Third Party Claim”), the indemnified party must notify the indemnifying party in writing of the Third Party Claim (a “Third Party Claim Notice”) promptly following receipt by such indemnified party of written notice of the Third Party Claim, which notification, to be a valid Third Party Claim Notice, with the effect set forth in Sections 12.1 and 12.2 (a “Valid Third Party Claim Notice”), must be accompanied by a copy of the written notice of the third party claimant to the indemnified party asserting the Third Party Claim; provided, that the failure to promptly provide such Notice or to promptly provide a copy of the written notice of the third party claimant (so long as a Valid Third Party Claim Notice is given before the expiration of the applicable survival period for a representation or warranty set forth in Section 8.112.1) shall not waive any rights of the indemnified party, an Indemnified Party (or Seller or Buyer, as applicable, on behalf thereof) determines in good faith except to the extent that it has a bona fide claim for indemnification pursuant to this ARTICLE VIII, such Indemnified Party may the rights of the indemnifying party are actually prejudiced thereby. The indemnified party shall deliver to the Indemnifying indemnifying party copies of all other notices and documents (including court papers) received by the indemnified party relating to the Third Party a certificate signed by any officer of the Indemnified Party (any certificate delivered in accordance with the provisions of this Section 8.9(a), an “Officer’s Claim Certificate”):
(i) stating that an Indemnified Party has a claim for indemnification pursuant to this ARTICLE VIII;Claim.
(ii) The indemnifying party shall have the right to defend and to direct the defense, and in the case of Assumed Liabilities shall have the obligation at the request of the indemnified party to defend and direct the defense, against any such Third Party Claim (including to conduct any proceedings or settlement negotiations) with counsel of its own choosing, unless there is a conflict of interest between the indemnified party and the indemnifying party in the conduct of the defense of such Third Party Claim. Prior to the extent possibletime the indemnified party is notified by the indemnifying party as to whether the indemnifying party will assume the defense of a Third Party Claim, containing a good faith non-binding, preliminary estimate the indemnified party shall take all actions reasonably necessary to timely preserve the collective rights of the amount parties with respect to which such Indemnified Third Party claims Claim, including responding timely to be entitled legal process. In the event the indemnifying party has assumed the defense of a Third Party Claim in accordance herewith, the indemnified party shall have the right to receive as participate in the defense of any Third Party Claim and to employ its own counsel (it being understood that the indemnifying party shall control such defense), at its own expense. If the indemnifying party is permitted to but shall decline to assume the defense of a claim for indemnification pursuant Third Party Claim (or shall fail to this ARTICLE VIIInotify the indemnified party of its election to defend such Third Party Claim) within 30 days after the giving by the indemnified party to the indemnifying party of a Valid Third Party Claim Notice with respect to the Third Party Claim, which or in the case of a conflict of interest, the indemnified party shall defend against the Third Party Claim and the indemnifying party shall be liable to the amount of Losses such Indemnified Party claims to have so indemnified party for all reasonable fees and expenses incurred or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed by the Indemnified Party) indemnified party in the material facts known to the Indemnified Party giving rise to such claim. No delay in providing such Officer’s Claim Certificate prior to the expiration defense of the applicable survival period for a representation or warranty in Section 8.1 shall affect an Indemnified Party’s rights hereunderThird Party Claim, unless (including without limitation the reasonable fees and then only to the extent that) the Indemnifying Party is materially prejudiced thereby.
(b) At the time expenses of delivery of any Officer’s Claim Certificate to the Indemnifying Party, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of the Indemnified Party.
(c) If the Indemnifying Party in good faith objects to any claim made by an Indemnified Party in any Officer’s Claim Certificate, then the Indemnifying Party shall deliver a written notice (a “Claim Dispute Notice”) to the Indemnified Party during the 30-day period commencing upon receipt counsel employed by the Indemnifying Party of the Officer’s Claim Certificate. A duplicate copy of such Claim Dispute Notice shall be delivered to the Escrow Agent by or on behalf of the Indemnifying Party. The Claim Dispute Notice shall set forth in reasonable detailindemnified party, if and to the extent that the indemnifying party is responsible to indemnify for such detail is available based upon Third Party Claim. Regardless of which party assumes the defense of a Third Party Claim, the parties agree to cooperate with one another in connection therewith. Such cooperation shall include providing records and information available that are relevant to such Indemnifying Third Party at such timeClaim, and making employees and officers available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder and to act as a witness or respond to legal process. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the principal basis for indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the dispute indemnifying party’s prior written consent (which consent shall not be unreasonably withheld). The indemnifying party, if it has assumed the defense of any Third Party Claim as provided in Section 12.3(a), shall not consent to a settlement of, or the entry of any judgment arising from, any such Third Party Claim without the indemnified party’s prior written consent (which consent shall not be unreasonably withheld) unless such settlement or judgment (a) relates solely to monetary damages for which the indemnifying party shall be responsible and (b) includes as an unconditional term thereof the release of the indemnified party from all liability with respect to such Third Party Claim.
(b) In order for an indemnified party to be entitled to any indemnification provided for under this Article XII in respect of a claim made by the Indemnified Party in the Officer’s Claim Certificate. If the Indemnifying Party that does not deliver involve a Third Party Claim Dispute Notice to being asserted against such indemnified party (an “Other Claim”), the Indemnified Party prior to indemnified party must promptly notify the expiration indemnifying party in writing of such 30-day periodOther Claim (the “Other Claim Notice”), then which notification, to be a valid Other Claim Notice, with the effect set forth in Sections 12.1 and 12.2 (a “Valid Other Claim Notice”), (i) each must certify that the indemnified party has in good faith already sustained some (though not necessarily all) Damages with respect to such claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in the Indemnified Party’s favor for purposes of this ARTICLE VIII on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the Escrow Account, then the Indemnified Party may direct the Escrow Agent to deliver cash from the Escrow Account to the Indemnified Party in accordance with this Section 8.9(c).
(d) If the Indemnifying Party delivers Other Claim Notice is asserting a Claim Dispute Notice, then the Indemnified Party and the Indemnifying Party shall attempt in good faith to resolve claim for breach of any such objections raised by the Indemnifying Party in such Claim Dispute Notice. If the Indemnified Party and the Indemnifying Party agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by the Indemnified Party and the Indemnifying Party shall be prepared and signed by both parties and, if cash remains in the Escrow Account, promptly delivered to the Escrow Agent, together with a Joint Direction (as defined in the Escrow Agreement) from Buyer and Seller pursuant to Section 4(b) of the Escrow Agreement directing representations and warranties contained in Section 3.13 (an “Environmental Breach”), must be accompanied by a written report from a reputable nationally or regionally recognized environmental consulting firm confirming, in reasonable detail, the Escrow Agent existence of the conditions as to distribute cash from which an Environmental Breach is claimed. The failure by any indemnified party to notify the Escrow Account in accordance with the terms of such memorandum.
indemnifying party promptly (e) If no such resolution can be reached during the 45-day period following the Indemnified Party’s receipt of so long as a Valid Other Claim Notice is given Claim Dispute Notice, then upon before the expiration of such 45-day periodthe applicable period set forth in Section 12.1) will not waive any rights of the indemnified party, either except to the Indemnified Party or extent that the Indemnifying Party may bring suit to resolve rights of the objection in accordance with Section 9.1 and Section 9.13indemnifying party are actually prejudiced thereby.
Appears in 1 contract
Procedures for Claims. (a) If at any time prior to the expiration of the applicable survival period In order for a representation or warranty in Section 8.1, an Indemnified Party to be entitled to any indemnification provided for under this Article XI in respect of, arising out of or involving a claim made by any third party against the Indemnified Party (a “Third Party Claim”), the Indemnified Party must notify SPX or Seller or BuyerPurchaser, as applicableapplicable (each, on behalf thereofin such capacity, the “Indemnifying Party”) determines in good faith that it has writing of the Third Party Claim (a bona fide claim for indemnification pursuant to this ARTICLE VIII, “Third Party Claim Notice”) promptly following receipt by such Indemnified Party may of written notice of the Third Party Claim, which notification, to be a valid Third Party Claim Notice, with the effect set forth in Section 11.1(a) or 11.1(b) (as applicable) (a “Valid Third Party Claim Notice”), must be accompanied by a copy of the written notice of the third party claimant to the Indemnified Party asserting the Third Party Claim; provided, that the failure to promptly provide such Third Party Claim Notice or to promptly provide a copy of the written notice of the third party claimant shall not waive any rights of the Indemnified Party, except to the extent that the rights of the Indemnifying Party are actually prejudiced thereby. The Indemnified Party shall deliver to the Indemnifying Party a certificate signed copies of all other notices and documents (including court papers) received by any officer of the Indemnified Party (any certificate delivered in accordance with the provisions of this Section 8.9(a), an “Officer’s Claim Certificate”):
(i) stating that an Indemnified Party has a claim for indemnification pursuant to this ARTICLE VIII;
(ii) relating to the extent possible, containing a good faith non-binding, preliminary estimate of the amount to which such Indemnified Third Party claims to be entitled to receive as a claim for indemnification pursuant to this ARTICLE VIII, which shall be the amount of Losses such Indemnified Party claims to have so incurred or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed by the Indemnified Party) the material facts known to the Indemnified Party giving rise to such claim. No delay in providing such Officer’s Claim Certificate prior to the expiration of the applicable survival period for a representation or warranty in Section 8.1 shall affect an Indemnified Party’s rights hereunder, unless (and then only to the extent that) the Indemnifying Party is materially prejudiced therebyClaim.
(b) At The Indemnifying Party shall have the time of delivery of any Officer’s Claim Certificate right to defend and to direct the Indemnifying Partydefense, a duplicate copy of such Officer’s Claim Certificate and shall be delivered to have the Escrow Agent by or on behalf obligation at the request of the Indemnified Party.
Party to defend and direct the defense, against any such Third Party Claim (cincluding to conduct any Action or settlement negotiations) with counsel of its own choosing, unless there is a conflict of interest between the Indemnified Party and the Indemnifying Party in the conduct of the defense of such Third Party Claim. Prior to the time the Indemnified Party is notified by the Indemnifying Party as to whether the Indemnifying Party will assume the defense of a Third Party Claim, the Indemnified Party shall take all actions reasonably necessary to timely preserve the collective rights of the parties with respect to such Third Party Claim, including responding timely to legal process. If the Indemnifying Party in good faith objects shall decline to any claim made by an assume the defense of a Third Party Claim (or shall fail to confirm to the Indemnified Party that it will defend such Third Party Claim) within 30 days after the giving by the Indemnified Party to the Indemnifying Party of a Valid Third Party Claim Notice with respect to the Third Party Claim, or in any Officer’s the case of a conflict of interest, the Indemnified Party shall defend against the Third Party Claim Certificate, then and the Indemnifying Party shall deliver a written notice (a “Claim Dispute Notice”) be liable to the Indemnified Party during the 30-day period commencing upon receipt for all reasonable fees and expenses incurred by the Indemnifying Indemnified Party in the defense of the Officer’s Claim Certificate. A duplicate copy Third Party Claim, including without limitation the reasonable fees and expenses of such Claim Dispute Notice shall be delivered to counsel employed by the Escrow Agent by or on behalf of the Indemnifying Indemnified Party. The Claim Dispute Notice shall set forth in reasonable detail, if and to the extent that the Indemnifying Party is responsible to indemnify for such detail is available based upon Third Party Claim. Regardless of which party assumes the defense of a Third Party Claim, the parties agree to cooperate with one another in connection therewith. Such cooperation shall include providing records and information available that are relevant to such Third Party Claim, and making employees and officers available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder and to act as a witness or respond to legal process. Whether or not the Indemnifying Party at such timeassumes the defense of a Third Party Claim, the principal basis for the dispute of any claim made by the Indemnified Party in the Officer’s shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim Certificate. If without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party does shall not deliver consent to a settlement of, or the entry of any judgment arising from, any such Third Party Claim Dispute Notice to the Indemnified Party prior to the expiration of such 30-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in without the Indemnified Party’s favor prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) unless such settlement or judgment (a) relates solely to monetary damages for purposes which the Indemnifying Party shall be responsible and (b) includes as an unconditional term thereof the release of the Indemnified Party from all liability with respect to such Third Party Claim, in which event no such consent shall be required.
(c) In order for an Indemnified Party to be entitled to any indemnification provided for under this ARTICLE VIII on Article XI in respect of a claim that does not involve a Third Party Claim being asserted against such Indemnified Party (an “Other Claim”), the terms Indemnified Party shall promptly notify the Indemnifying Party in writing of such Other Claim (the “Other Claim Notice”), which notification, to be a valid Other Claim Notice, with the effect set forth in the Officer’s Section 11.1 (a “Valid Other Claim Certificate and (ii) if cash remains in the Escrow AccountNotice” and, then together with a Valid Third Party Claim Notice, a “Valid Claim Notice”), shall certify that the Indemnified Party may has in good faith already sustained some (though not necessarily all) Damages with respect to such claim. The failure by any Indemnified Party to notify the Indemnifying Party promptly shall not waive any rights of the Indemnified Party, except to the extent that the rights of the Indemnifying Party are actually prejudiced thereby. The foregoing notwithstanding, any Other Claim arising from the breach of any of the representations or warranties set forth in Section 2.13 shall be subject to the rights of the Indemnifying Party to defend and to direct the Escrow Agent to deliver cash from the Escrow Account to the Indemnified Party defense of such Other Claim in accordance with this Section 8.9(c11.2(b).
(d) If The party that has assumed the Indemnifying control or defense of any Third Party delivers a Claim Dispute Notice, then or Other Claim arising from the Indemnified Party breach of any of the representations or warranties set forth in Section 2.13 shall (a) provide the other party with the right to participate in any meetings or negotiations with any Governmental Authorities or other third parties and the Indemnifying Party shall attempt in good faith to resolve reasonable advance notice of any such objections raised meetings or negotiations, (b) provide the other party with the right to review in advance and provide comments on any draft or final documents proposed to be submitted to Governmental Authorities or other third parties, and (c) keep the other party reasonably informed with respect to such Third Party Claim or Other Claim, including providing copies of all documents provided to, or received from, any Governmental Authority or any other third party in connection with such Third Party Claim or Other Claim. The Purchaser Indemnified Parties and SPX covenant and agree to maintain the confidence of all drafts and comments provided by the Indemnifying Party in such Claim Dispute Notice. If the Indemnified Party and the Indemnifying Party agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by the Indemnified Party and the Indemnifying Party shall be prepared and signed by both parties and, if cash remains in the Escrow Account, promptly delivered to the Escrow Agent, together with a Joint Direction (as defined in the Escrow Agreement) from Buyer and Seller pursuant to Section 4(b) of the Escrow Agreement directing the Escrow Agent to distribute cash from the Escrow Account in accordance with the terms of such memorandumother party.
(e) If no such resolution can This Section 11.2 shall not apply to Tax Contests, which shall be reached during the 45-day period following the Indemnified Party’s receipt of a given Claim Dispute Notice, then upon the expiration of such 45-day period, either the Indemnified Party or the Indemnifying Party may bring suit subject to resolve the objection in accordance with Section 9.1 Sections 11.3(b) and Section 9.13(c).
Appears in 1 contract
Procedures for Claims. (a) If at In the case of any time prior to the expiration claim for indemnification arising from a claim of the applicable survival period for a representation or warranty in Section 8.1third party, an Indemnified Party (or Seller or Buyershall give prompt written notice, as applicable, on behalf thereof) determines in good faith that it has a bona fide claim for indemnification pursuant to this ARTICLE VIII, no event more than 10 days following such Indemnified Party may deliver Party’s receipt of such claim or demand, to the Indemnifying Party a certificate signed by of any officer of the Indemnified Party (any certificate delivered in accordance with the provisions of this Section 8.9(a), an “Officer’s Claim Certificate”):
(i) stating that an claim or demand which such Indemnified Party has knowledge and as to which it may request indemnification hereunder; provided, however, that the Indemnifying Party shall not be relieved of its indemnification obligations pursuant to this sentence except only to the extent that the Indemnified Party’s delay in giving such notice impairs the ability of the Indemnifying Party to defend against the claim or demand. Notwithstanding the immediately preceding sentence, all notices asserting a claim for indemnification based on a representation or warranty, to be effective, must be given in writing to the Indemnifying Party before the expiration of such representation or warranty pursuant to this ARTICLE VIII;
(ii) Section10.1 and in accordance with Section 10.2(d)(ii). The Indemnifying Party shall have the right to defend and to direct the extent possibledefense against any such claim or demand, containing a good faith non-binding, preliminary estimate in its name or in the name of the amount to which such Indemnified Party claims to be entitled to receive as a claim for indemnification pursuant to this ARTICLE VIII, which shall be the amount of Losses such Indemnified Party claims to have so incurred or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed by the Indemnified Party) , as the material facts known to case may be, at the Indemnified Party giving rise to such claim. No delay in providing such Officer’s Claim Certificate prior to the expiration expense of the applicable survival period for a representation or warranty in Section 8.1 shall affect an Indemnified Party’s rights hereunder, unless (and then only to the extent that) the Indemnifying Party is materially prejudiced thereby.
(b) At the time of delivery of any Officer’s Claim Certificate to the Indemnifying Party, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of the Indemnified Party.
(c) If the Indemnifying Party in good faith objects to any claim made by an Indemnified Party in any Officer’s Claim Certificate, then the Indemnifying Party shall deliver a written notice (a “Claim Dispute Notice”) to the Indemnified Party during the 30-day period commencing upon receipt and with legal counsel selected by the Indemnifying Party of unless (i) such claim or demand seeks an order, injunction or other equitable relief against the Officer’s Claim Certificate. A duplicate copy of such Claim Dispute Notice shall be delivered to the Escrow Agent by Indemnified Party, or on behalf of the Indemnifying Party. The Claim Dispute Notice shall set forth in reasonable detail, if and to the extent that such detail is available based upon the information available to such Indemnifying Party at such time, the principal basis for the dispute of any claim made by (ii) the Indemnified Party in the Officer’s Claim Certificate. If the Indemnifying Party does not deliver shall have reasonably concluded that (x) there is a Claim Dispute Notice to the Indemnified Party prior to the expiration conflict of such 30-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in the Indemnified Party’s favor for purposes of this ARTICLE VIII on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the Escrow Account, then the Indemnified Party may direct the Escrow Agent to deliver cash from the Escrow Account to the Indemnified Party in accordance with this Section 8.9(c).
(d) If the Indemnifying Party delivers a Claim Dispute Notice, then interest between the Indemnified Party and the Indemnifying Party shall attempt in good faith the conduct of the defense of such claim or demand or (y) the Indemnified Party has one or more defenses not available to resolve any such objections raised by the Indemnifying Party. Notwithstanding anything in this Agreement to the contrary, the Indemnified Party shall, at the expense of the Indemnifying Party, cooperate with the Indemnifying Party, and keep the Indemnifying Party fully informed, in the defense of such Claim Dispute Noticeclaim or demand. If the The Indemnified Party and shall have the right to participate in the defense of any claim or demand with legal counsel employed at its own expense; provided, however, that, in the case of any claim or demand described in clause (i) or (ii) of the second preceding sentence or as to which the Indemnifying Party agree shall not in fact have employed legal counsel to a resolution assume the defense of such objectionclaim or demand, then a memorandum setting forth the matters conclusively determined reasonable fees and disbursements of such counsel shall be at the expense of the Indemnifying Party. The Indemnifying Party shall have no indemnification obligations with respect to any such claim or demand which shall be settled by the Indemnified Party and without the prior written consent of the Indemnifying Party Party, which consent shall not be prepared and signed by both parties and, if cash remains in the Escrow Account, promptly delivered to the Escrow Agent, together with a Joint Direction (as defined in the Escrow Agreement) from Buyer and Seller pursuant to Section 4(b) of the Escrow Agreement directing the Escrow Agent to distribute cash from the Escrow Account in accordance with the terms of such memorandumunreasonably withheld or delayed.
(e) If no such resolution can be reached during the 45-day period following the Indemnified Party’s receipt of a given Claim Dispute Notice, then upon the expiration of such 45-day period, either the Indemnified Party or the Indemnifying Party may bring suit to resolve the objection in accordance with Section 9.1 and Section 9.13.
Appears in 1 contract
Samples: Asset Purchase Agreement (Advanced Power Technology Inc)
Procedures for Claims. (a) If at any time prior A Claiming Party shall give written notification to the expiration Responsible Party of the applicable survival period for a representation or warranty in Section 8.1, an commencement of any Third Party Action. Such notification shall be given within twenty (20) days after receipt by the Indemnified Party of notice of such Third Party Action, and shall describe in reasonable detail (to the extent known by the Claiming Party) the facts constituting the basis for such Third Party Action and the amount of the claimed damages; provided, however, that no delay or Seller failure on the part of the Claiming Party in so notifying the Responsible Party shall impair the Buyer’s claim against the Escrow Amount, in the case of a claim under Section 6.1 or Buyerrelieve the Buyer of any liability or obligation, as applicablein the case of a claim for indemnification under Section 6.2, on behalf thereofexcept to the extent of any damage or liability caused by or arising out of such failure. Within twenty (20) determines days after delivery of such notification, the Responsible Party may, upon written notice thereof to the Claiming Party, assume control of the defense of such Third Party Action with counsel reasonably satisfactory to the Claiming Party; provided that (i) the Responsible Party may only assume control of such defense if (A) it acknowledges in writing to the Claiming Party that any damages, fines, costs or other liabilities that may be assessed against the Claiming Party in connection with such Third Party Action constitute Damages for which the Claiming Party shall be entitled to recover from the Escrow Amount, in the case of a claim under Section 6.1, or to be indemnified in the case of a claim for indemnification under Section 6.2, pursuant to this Article VI and (B) in the case of a claim under Section 6.1, the ad damnum is less than or equal to the remaining Escrow Amount and (ii) the Responsible Party may not assume control of the defense of a Third Party Action involving criminal liability or in which equitable relief is sought against the Claiming Party. If the Responsible Party does not, or is not permitted under the terms hereof to, so assume control of the defense of a Third Party Action, the Claiming Party shall control such defense. The Non-Controlling Party may participate in such defense at its own expense. The Controlling Party shall keep the Non-Controlling Party advised of the status of such Third Party Action and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such Third Party Action (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such Third Party Action. The fees and expenses of counsel to the Claiming Party with respect to a Third Party Action shall be considered Damages for purposes of this Agreement if (i) the Claiming Party controls the defense of such Third Party Action pursuant to the terms of this Section 6.3(a) or (ii) the Responsible Party assumes control of such defense and the Claiming Party reasonably concludes that it the Responsible Party and the Claiming Party have conflicting interests or different defenses available with respect to such Third Party Action. The Responsible Party shall not agree to any settlement of, or the entry of any judgment arising from, any Third Party Action without the prior written consent of the Claiming Party, which shall not be unreasonably withheld, conditioned or delayed; provided that the consent of the Claiming Party shall not be required if the Responsible Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the Claiming Party from further liability and has no other adverse effect on the Claiming Party. The Claiming Party shall not agree to any settlement of, or the entry of any judgment arising from, any such Third Party Action without the prior written consent of the Responsible Party, which shall not be unreasonably withheld, conditioned or delayed.
(b) In order to make a bona fide claim under this Article VI, a Claiming Party shall deliver a Claim Notice to the Responsible Party. If the Claiming Party is the Buyer, the Responsible Party shall deliver a copy of the Claim Notice to the Escrow Agent.
(c) Within twenty (20) days after delivery of a Claim Notice, the Responsible Party shall deliver to the Claiming Party a Response, in which the Responsible Party shall: (i) agree that the Claiming Party is entitled to receive all of the Claimed Amount (in which case, if the responsible Party is the Buyer, the Response shall be accompanied by a payment by the Responsible Party to the Claiming Party of the Claimed Amount, by check or by wire transfer; or if the Claiming Party is the Buyer, the Responsible Party and the Claiming Party shall deliver to the Escrow Agent, within three (3) days following the delivery of the Response, a written notice executed by both parties instructing the Escrow Agent to disburse the Claimed Amount to the Buyer), (ii) agree that the Claiming Party is entitled to receive the Agreed Amount (in which case, if the Responsible Party is the Buyer, the Response shall be accompanied by a payment by the Responsible Party to the Claiming Party of the Agreed Amount, by check or by wire transfer; or, if the Claiming Party is the Buyer, the Responsible Party and the Claiming Party shall deliver to the Escrow Agent, within three (3) days following the delivery of the Response, a written notice executed by both parties instructing the Escrow Agent to disburse the Agreed Amount to the Buyer) or (iii) dispute that the Claiming Party is entitled to receive any of the Claimed Amount.
(d) During the thirty (30)-day period following the delivery of a Response that reflects a Dispute, the Responsible Party and the Claiming Party shall use good faith efforts to resolve the Dispute. If the Dispute is not resolved within such thirty (30)-day period, the Responsible Party and the Claiming Party shall submit the Dispute to arbitration in accordance with the rules of the American Arbitration Association.
(e) If, as set forth in Section 6.3(d), the Claiming Party and the Responsible Party submit any Dispute to binding arbitration, the arbitration shall be conducted by a single arbitrator (the “Arbitrator”) in accordance with the Commercial Rules in effect from time to time and the following provisions:
(i) In the event of any conflict between the Commercial Rules in effect from time to time and the provisions of this Agreement, the provisions of this Agreement shall prevail and be controlling.
(ii) The parties shall commence the arbitration by jointly filing a written submission with the Boston office of the AAA in accordance with Commercial Rule 5 (or any successor provision).
(iii) No depositions or other discovery shall be conducted in connection with the arbitration.
(iv) Not later than 30 days after the conclusion of the arbitration hearing, the Arbitrator shall prepare and distribute to the parties a writing setting forth the arbitral award and the Arbitrator’s reasons therefor. Any award rendered by the Arbitrator shall be final, conclusive and binding upon the parties, and judgment thereon may be entered and enforced in any court of competent jurisdiction, provided that the Arbitrator shall have no power or authority to grant injunctive relief, specific performance or other equitable relief.
(v) The Arbitrator shall have no power or authority, under the Commercial Rules or otherwise, to (x) modify or disregard any provision of this Agreement, including the provisions of this Section 6.3(e), or (y) address or resolve any issue not submitted by the parties.
(vi) In connection with any arbitration proceeding pursuant to this Agreement, each party shall bear its own costs and expenses, except that the fees and costs of the AAA and the Arbitrator, the costs and expenses of obtaining the facility where the arbitration hearing is held, and such other costs and expenses as the Arbitrator may determine to be directly related to the conduct of the arbitration and appropriately borne jointly by the parties (which shall not include any party’s attorneys’ fees or costs, witness fees (if any), costs of investigation and similar expenses) shall be shared equally by the Claiming Party and the Responsible Party.
(f) Notwithstanding the other provisions of this Section 6.3, if a third party asserts (other than by means of a lawsuit) that an Responsible Party is liable to such third party for a monetary or other obligation which may constitute or result in Damages for which such Claiming Party may be entitled to make a claim against the Escrow Amount pursuant to Section 6.1 or a claim for indemnification pursuant to this ARTICLE VIIISection 6.2, as the case may be, and such Indemnified Claiming Party reasonably determines that it has a valid business reason to fulfill such obligation, then
(i) such Claiming Party shall be entitled to satisfy such obligation, without prior notice to or consent from the Responsible Party, (ii) such Claiming Party may deliver to the Indemnifying Party subsequently make a certificate signed by any officer of the Indemnified Party (any certificate delivered claim in accordance with the provisions of this Article VI, and (iii) such Claiming Party shall recover, in accordance with the provisions of this Article VI, for any such Damages for which it is entitled to recovery pursuant to this Article VI (subject to the right of the Responsible Party to dispute the Claiming Party’s entitlement to recover, or the amount for which it is entitled to such recovery, under the terms of this Article VI).
(g) For purposes of this Section 8.9(a)6.3 and the second and third sentences of Section 6.4, an “Officer’s Claim Certificate”):
(i) stating that if the Buyer, the Surviving Corporation or an Indemnified Party has a claim for indemnification pursuant to this ARTICLE VIII;
(ii) Affiliate thereof comprises the Claiming Party, any references to the extent possible, containing a good faith non-binding, preliminary estimate of the amount to which such Indemnified Responsible Party claims to be entitled to receive as a claim for indemnification pursuant to this ARTICLE VIII, which shall be the amount of Losses such Indemnified Party claims deemed to have so incurred or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed by the Indemnified Party) the material facts known refer to the Indemnified Party giving rise to such claim. No delay in providing such Officer’s Claim Certificate prior to the expiration of the applicable survival period Stockholder Representatives (acting for a representation or warranty in Section 8.1 shall affect an Indemnified Party’s rights hereunder, unless (and then only to the extent that) the Indemnifying Party is materially prejudiced thereby.
(b) At the time of delivery of any Officer’s Claim Certificate to the Indemnifying Party, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of the Indemnified Party.
(c) If the Indemnifying Party in good faith objects to any claim made by an Indemnified Party in any Officer’s Claim CertificateStockholders), then the Indemnifying Party shall deliver a written notice (a “Claim Dispute Notice”) to the Indemnified Party during the 30-day period commencing upon receipt by the Indemnifying Party of the Officer’s Claim Certificate. A duplicate copy of such Claim Dispute Notice shall be delivered to the Escrow Agent by or on behalf of the Indemnifying Party. The Claim Dispute Notice shall set forth in reasonable detail, if and to the extent that such detail is available based upon the information available to such Indemnifying Party at such time, the principal basis for the dispute of any claim made by the Indemnified Party in the Officer’s Claim Certificate. If the Indemnifying Party does not deliver a Claim Dispute Notice to the Indemnified Party prior to the expiration of such 30-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in the Indemnified Party’s favor for purposes of this ARTICLE VIII on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the Escrow AccountStockholders comprise the Claiming Party, then the Indemnified Party may direct the Escrow Agent to deliver cash from the Escrow Account any references to the Indemnified Claiming Party in accordance with (except provisions relating to an obligation to make or a right to receive any payments) shall be deemed to refer to the Stockholder Representatives (acting for and on behalf of the Stockholders). The Stockholder Representatives shall have full power and authority on behalf of each Stockholder to take any and all actions on behalf of, execute any and all instruments on behalf of, and execute or waive any and all rights of, the Stockholders under this Section 8.9(c)Article VI. The Stockholder Representatives shall have no liability to any Stockholder for any action taken or omitted on behalf of the Stockholders pursuant to this Article VI.
(dh) If Notwithstanding any other provision of this Article VI or any other section of this Agreement to the Indemnifying Party delivers contrary, the parties hereby acknowledge and agree that in no event shall any Stockholder have any personal liability for any existing or future obligation of the Company or the Surviving Corporation in the Merger as a Claim Dispute Noticeresult of his, then her or its stock ownership in the Indemnified Party Company, and the Indemnifying Party Buyer, Surviving Corporation and Affiliates thereof shall attempt in good faith have no recourse against the Stockholders with respect to resolve any such objections raised claims by the Indemnifying Party in such Claim Dispute Notice. If the Indemnified Party and the Indemnifying Party agree to a resolution of such objectionthem as Claiming Parties hereunder, then a memorandum setting forth the matters conclusively determined by the Indemnified Party and the Indemnifying Party but shall be prepared and signed by both parties and, if cash remains in have recourse only against the Escrow Account, promptly delivered Fund as and to the Escrow Agent, together with a Joint Direction (as defined in extent provided herein and under the Escrow Agreement) from Buyer and Seller pursuant to Section 4(b) of the Escrow Agreement directing the Escrow Agent to distribute cash from the Escrow Account in accordance with the terms of such memorandum.
(e) If no such resolution can be reached during the 45-day period following the Indemnified Party’s receipt of a given Claim Dispute Notice, then upon the expiration of such 45-day period, either the Indemnified Party or the Indemnifying Party may bring suit to resolve the objection in accordance with Section 9.1 and Section 9.13.
Appears in 1 contract
Samples: Merger Agreement (Netezza Corp)
Procedures for Claims. (a) If at any time prior to the expiration of the applicable survival period for a representation or warranty in Section 8.1, Any claim by an Indemnified Party (on account of a Loss which results from the acts or Seller or Buyer, as applicable, on behalf thereof) determines in good faith that it has a bona fide claim for indemnification pursuant to this ARTICLE VIII, such Indemnified Party may deliver to omissions of the Indemnifying Party pursuant to Section 7.02(a), 7.02(b) or 7.03, as well as any claim pursuant to Section 7.02(c) and any claim pursuant to Section 7.02(d) other than as specifically addressed in Section 7.07(b), any of the foregoing as applicable (a certificate signed “Claim”), shall be asserted by any officer of the Indemnified Party (any certificate delivered in accordance with giving the provisions Indemnifying Party prompt written notice thereof. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of this Section 8.9(a)its indemnification obligations, an “Officer’s Claim Certificate”):
(i) stating that an Indemnified Party has a claim for indemnification pursuant to this ARTICLE VIII;
(ii) except and only to the extent possiblethat the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Claim in reasonable detail, containing a good faith non-bindingshall include copies of all material written evidence thereof and shall indicate the estimated amount, preliminary estimate if reasonably practicable, of the amount to which such Indemnified Party claims to Loss that has been or may be entitled to receive as a claim for indemnification pursuant to this ARTICLE VIII, which shall be the amount of Losses such Indemnified Party claims to have so incurred or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed sustained by the Indemnified Party) the material facts known . The Indemnifying Party shall have 30 days after its receipt of such notice to the Indemnified Party giving rise respond in writing to such claim. No delay in providing such Officer’s Claim Certificate prior to the expiration of the applicable survival period for a representation or warranty in Section 8.1 shall affect an Indemnified Party’s rights hereunderClaim, unless (and then only to the extent that) the Indemnifying Party is materially prejudiced thereby.
(b) At the time of delivery of any Officer’s Claim Certificate to the Indemnifying Party, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of the Indemnified Party.
(c) If the Indemnifying Party in good faith objects to any claim made by an Indemnified Party in any Officer’s Claim Certificate, then including whether the Indemnifying Party shall deliver a written notice assume the defense of such Claim (a “Claim Dispute Notice”) to the extent applicable). During such 30-day period, the Indemnified Party during the 30-day period commencing upon receipt by shall allow the Indemnifying Party and its professional advisors to investigate the matter or circumstance alleged to give rise to the Claim, and whether and to what extent any amount is payable in respect of the Officer’s Claim Certificate. A duplicate copy of such Claim Dispute Notice and the Indemnified Party shall be delivered to the Escrow Agent by or on behalf of assist the Indemnifying Party. The Claim Dispute Notice shall set forth in reasonable detail, if ’s investigation by giving such information and assistance (including access to the extent that such detail is available based upon Company’s premises and personnel and the information available right to such examine and copy any accounts, documents or records) as the Indemnifying Party at such time, the principal basis for the dispute or any of any claim made by the Indemnified Party in the Officer’s Claim Certificateits professional advisors may reasonably request. If the Indemnifying Party does not deliver a Claim Dispute Notice to the Indemnified Party prior to the expiration of so respond within such 30-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate the Indemnifying Party shall be deemed to have been conclusively determined rejected such claim, in the Indemnified Party’s favor for purposes of this ARTICLE VIII on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the Escrow Account, then which case the Indemnified Party shall be free to pursue such remedies as may direct the Escrow Agent to deliver cash from the Escrow Account be available to the Indemnified Party in accordance with on the terms and subject to the provisions of this Section 8.9(c)Agreement.
(db) Any claim by an Indemnified Party on account of a Claim pursuant to Section 7.02(d) related to the costs associated with the compliance orders that have been issued to the subsidiaries of the Company and that are incurred in connection with the release of all legacy bonds of the Company’s subsidiaries shall be made after the threshold described therein has been satisfied and aggregated quarterly (i) within five (5) Business Days following the end of each of the first three calendar quarters of 2021 or (ii) on the one-year anniversary of the Closing Date. The failure to give such written notice as set forth herein shall relieve the Indemnifying Party of its indemnification obligations. Such notice by the Indemnified Party shall describe the Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the Claim amount that has been sustained by the Indemnified Party. The Indemnifying Party shall have thirty (30) days after its receipt of such notice to respond in writing to such Claim. During such thirty (30)-day period, the Indemnified Party shall allow the Indemnifying Party and its professional advisors to investigate the matter or circumstance alleged to give rise to the Claim, and whether and to what extent any amount is payable in respect of the Claim and the Indemnified Party shall assist the Indemnifying Party’s investigation by giving such information and assistance (including access to the Company’s premises and personnel and the right to examine and copy any accounts, documents or records) as the Indemnifying Party or any of its professional advisors may reasonably request. If the Indemnifying Party delivers a Claim Dispute Noticedoes not so respond within such thirty (30)-day period, then the Indemnified Party and the Indemnifying Party shall attempt in good faith to resolve any such objections raised by the Indemnifying Party in such Claim Dispute Notice. If the Indemnified Party and the Indemnifying Party agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by the Indemnified Party and the Indemnifying Party shall be prepared and signed by both parties and, if cash remains in the Escrow Account, promptly delivered deemed to the Escrow Agent, together with a Joint Direction (as defined in the Escrow Agreement) from Buyer and Seller pursuant to Section 4(b) of the Escrow Agreement directing the Escrow Agent to distribute cash from the Escrow Account in accordance with the terms of have accepted such memorandumclaim.
(e) If no such resolution can be reached during the 45-day period following the Indemnified Party’s receipt of a given Claim Dispute Notice, then upon the expiration of such 45-day period, either the Indemnified Party or the Indemnifying Party may bring suit to resolve the objection in accordance with Section 9.1 and Section 9.13.
Appears in 1 contract
Procedures for Claims. (a) If at Third-Party Claims. Promptly after the receipt by any time prior to the expiration of the applicable survival period for a representation or warranty in Section 8.1, an Indemnified Party of a notice of any claim, action, suit or proceeding by any third party that may be subject to indemnification hereunder, including for purposes of this Section 9.3 any Tax Claim (or Seller or Buyer, as applicable, on behalf defined below) with respect to which notice must be provided within five Business Days following receipt thereof) determines in good faith that it has a bona fide claim for indemnification pursuant to this ARTICLE VIII, such Indemnified Party may deliver to the Indemnifying Party a certificate signed by any officer shall give written notice of the Indemnified Party (any certificate delivered in accordance with the provisions of this Section 8.9(a), an “Officer’s Claim Certificate”):
(i) stating that an Indemnified Party has a such claim for indemnification pursuant to this ARTICLE VIII;
(ii) to the extent possible, containing a good faith non-binding, preliminary estimate of the amount to which such Indemnified Party claims to be entitled to receive as a claim for indemnification pursuant to this ARTICLE VIII, which shall be the amount of Losses such Indemnified Party claims to have so incurred or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed by the Indemnified Party) the material facts known to the Indemnified Party giving rise to such claim. No delay in providing such Officer’s Claim Certificate prior to the expiration of the applicable survival period for a representation or warranty in Section 8.1 shall affect an Indemnified Party’s rights hereunder, unless (and then only to the extent that) the Indemnifying Party is materially prejudiced thereby.
(b) At the time of delivery of any Officer’s Claim Certificate to the Indemnifying Party, a duplicate copy stating in reasonable detail the nature and basis of such Officer’s Claim Certificate shall be delivered the claim and the amount thereof, to the Escrow Agent by or on behalf extent known, along with copies of the relevant documents evidencing the claim and the basis for indemnification sought. Failure of the Indemnified Party.
(c) If Party to give such notice shall not relieve the Indemnifying Party in good faith objects to any claim made by an Indemnified Party in any Officer’s Claim Certificatefrom liability on account of this indemnification, then the Indemnifying Party shall deliver a written notice (a “Claim Dispute Notice”) to the Indemnified Party during the 30-day period commencing upon receipt by the Indemnifying Party of the Officer’s Claim Certificate. A duplicate copy of such Claim Dispute Notice shall be delivered to the Escrow Agent by or on behalf of the Indemnifying Party. The Claim Dispute Notice shall set forth in reasonable detail, except if and to the extent that such detail is available based upon the information available to such Indemnifying Party is actually prejudiced thereby. The Indemnifying Party shall have the right to assume the defense of the Indemnified Party against the third party claim at its expense and through counsel of its choice, but not if such time, claim imposes criminal liability. So long as the principal basis for Indemnifying Party has assumed the dispute defense of any the third party claim made by in accordance herewith and notified the Indemnified Party in writing thereof, (i) the Officer’s Claim CertificateIndemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the third party claim, it being understood the Indemnifying Party shall pay all reasonable costs and expenses of counsel for the Indemnified Party for all periods after the Indemnified Party has notified the Indemnifying Party of such claim and prior to such time as the Indemnifying Party has notified the Indemnified Party that it has assumed the defense of such third party claim (it is agreed that the Indemnifying Party shall not be obligated to pay reasonable costs and expenses of more than one counsel for all Indemnified Parties), (ii) the Indemnified Party shall not file any papers or consent to the entry of any judgment or enter into any settlement with respect to the third party claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld) and (iii) the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect to the third party claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld or delayed) unless the judgment or proposed settlement involves only the payment of money and does not impose an injunction or other equitable relief upon the Indemnified Party. The parties shall use commercially reasonable efforts to minimize Losses from claims by third parties and shall act in good faith in responding to, defending against, settling or otherwise dealing with such claims. The parties shall also cooperate in any such defense and give each other reasonable access to all information relevant thereto. If the Indemnifying Party does shall not deliver a Claim Dispute Notice have assumed the defense, such party shall not be obligated to indemnify the Indemnified Party prior to the expiration of such 30-day period, then (i) each claim hereunder for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in the Indemnified Party’s favor for purposes of this ARTICLE VIII on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the Escrow Account, then the Indemnified Party may direct the Escrow Agent to deliver cash from the Escrow Account to the Indemnified Party in accordance with this Section 8.9(c).
(d) If any settlement entered into without the Indemnifying Party delivers a Claim Dispute NoticeParty's prior written consent, then the Indemnified Party and the Indemnifying Party which consent shall attempt in good faith to resolve any such objections raised by the Indemnifying Party in such Claim Dispute Notice. If the Indemnified Party and the Indemnifying Party agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by the Indemnified Party and the Indemnifying Party shall not be prepared and signed by both parties and, if cash remains in the Escrow Account, promptly delivered to the Escrow Agent, together with a Joint Direction (as defined in the Escrow Agreement) from Buyer and Seller pursuant to Section 4(b) of the Escrow Agreement directing the Escrow Agent to distribute cash from the Escrow Account in accordance with the terms of such memorandumunreasonably withheld or delayed.
(e) If no such resolution can be reached during the 45-day period following the Indemnified Party’s receipt of a given Claim Dispute Notice, then upon the expiration of such 45-day period, either the Indemnified Party or the Indemnifying Party may bring suit to resolve the objection in accordance with Section 9.1 and Section 9.13.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Cooper-Standard Holdings Inc.)
Procedures for Claims. (a) If at any time prior to the expiration of the applicable survival period for a representation or warranty in Section 8.1, an Indemnified Party (or Seller or Buyer, as applicable, on behalf thereof) determines in good faith that it has a bona fide claim for indemnification pursuant to this ARTICLE VIII, such Indemnified Party may deliver to the Indemnifying Party a certificate signed by any officer of the Indemnified Party (any certificate delivered in accordance with the provisions of this Section 8.9(a), an “Officer’s Claim Certificate”):
(i) stating that an Indemnified Party has a claim for indemnification pursuant to this ARTICLE VIII;
Damages (iia “Claim”) to the extent possible, containing a good faith non-binding, preliminary estimate of the amount to which such Indemnified Party claims is to be made by a Person entitled to receive as a claim for indemnification pursuant to this ARTICLE VIIIhereunder, which shall be the amount of Losses Person claiming such Indemnified Party claims to have so incurred or suffered or could reasonably be expected to incur or suffer; and
indemnification (iii) specifying in reasonable detail (based upon the information then possessed by the “Indemnified Party”) the material facts known to the Indemnified Party giving rise to such claim. No delay in providing such Officer’s Claim Certificate prior to the expiration of the applicable survival period for a representation or warranty in Section 8.1 shall affect an Indemnified Party’s rights hereunder, unless (and then only to the extent that) the Indemnifying Party is materially prejudiced thereby.
(b) At the time of delivery of any Officer’s Claim Certificate to the Indemnifying Party, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of the Indemnified Party.
(c) If the Indemnifying Party in good faith objects to any claim made by an Indemnified Party in any Officer’s Claim Certificate, then the Indemnifying Party shall deliver a give written notice (a “Claim Dispute Notice”) to the indemnifying Person (the “Indemnifying Party”) reasonably promptly after the Indemnified Party during becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 10.2, provided that if the 30-day period commencing upon receipt Indemnified Party is a Music & Arts Indemnified Party, such Claim Notice shall only be valid if it is delivered by the Stockholder Representative. The failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder, except and only to the extent that, the Indemnifying Party demonstrates actual material damage caused by such failure. In the case of a Claim involving the assertion of a claim by a third party (whether pursuant to a lawsuit, other legal action or otherwise, a “Third Party Claim”), if the Indemnifying Party shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated to indemnify the Indemnified Party under the terms of its indemnity hereunder in connection with such Third Party Claim, then (A) the Indemnifying Party shall be entitled and, if it so elects, shall be obligated at its own cost, risk and expense, (1) to take control of the Officer’s Claim Certificate. A duplicate copy defense and investigation of such Third Party Claim Dispute Notice and (2) to pursue the defense thereof in good faith by appropriate actions or proceedings promptly taken or instituted and diligently pursued, including, without limitation, to employ and engage attorneys of its own choice reasonably acceptable to the Indemnified Party to handle and defend the same, and (B) the Indemnifying Party shall be delivered entitled (but not obligated), if it so elects, to compromise or settle such claim, which compromise or settlement shall be made only with the Escrow Agent written consent of the Indemnified Party, such consent not to be unreasonably withheld or delayed. In the event the Indemnifying Party elects to assume control of the defense and investigation of such lawsuit or other legal action in accordance with this Section 10.2, the Indemnified Party may, at its own cost and expense, participate in the investigation, trial and defense of such Third Party Claim, provided that if the named Persons to a lawsuit or other legal action include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised by counsel that there may be one or on behalf of more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party. The Claim Dispute Notice shall set forth in reasonable detail, if and to the extent that such detail is available based upon the information available to such Indemnifying Party at such time, the principal basis for the dispute of any claim made by the Indemnified Party in shall be entitled, at the OfficerIndemnifying Party’s Claim Certificatecost, risk and expense, to retain one firm of separate counsel of its own choosing (along with any required local counsel). If the Indemnifying Party does not deliver a Claim Dispute Notice fails to assume the Indemnified Party prior to the expiration defense of such 30-day period, then (i) each claim for indemnification set forth in such Officer’s Third Party Claim Certificate shall be deemed to have been conclusively determined in the Indemnified Party’s favor for purposes of this ARTICLE VIII on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the Escrow Account, then the Indemnified Party may direct the Escrow Agent to deliver cash from the Escrow Account to the Indemnified Party in accordance with this Section 8.9(c).
10.2 within ten (d10) If Business Days after delivery of the Indemnifying Party delivers a Claim Dispute NoticeNotice in accordance with Section 12.1, then the Indemnified Party and against which such Third Party Claim has been asserted shall (upon delivering notice to such effect to the Indemnifying Party shall attempt in good faith Party) have the right to resolve any such objections raised by undertake the Indemnifying Party in such Claim Dispute Notice. If the Indemnified Party defense, compromise and the Indemnifying Party agree to a resolution settlement of such objectionThird Party Claim, then a memorandum setting forth the matters conclusively determined by the Indemnified Party and the Indemnifying Party shall be prepared liable for any resulting settlement of such Third Party Claim and signed by both parties andfor any final judgment with respect thereto (subject to any right of appeal), if cash remains in the Escrow Accountany, promptly delivered but only to the Escrow Agent, together with a Joint Direction (as defined full extent otherwise provided in this Agreement. In the Escrow Agreement) from Buyer and Seller pursuant to Section 4(b) event the Indemnifying Party assumes the defense of the Escrow Agreement directing claim, the Escrow Agent to distribute cash from the Escrow Account in accordance with the terms of such memorandum.
(e) If no such resolution can be reached during the 45-day period following the Indemnified Party’s receipt of a given Claim Dispute Notice, then upon the expiration of such 45-day period, either Indemnifying Party shall keep the Indemnified Party reasonably informed of the progress of any such defense, compromise or settlement, and in the event the Indemnified Party assumes the defense of the claim, the Indemnified Party shall keep the Indemnifying Party may bring suit to resolve reasonably informed of the objection in accordance with Section 9.1 and Section 9.13progress of any such defense, compromise or settlement.
Appears in 1 contract
Samples: Merger Agreement (Guitar Center Inc)
Procedures for Claims. (ai) If at In order for an Indemnitee to be entitled to any time prior remedy provided for under this Article 6 in respect of, arising out of or involving a Third Party Claim, the Indemnitee must notify the Indemnitor in writing of the Third Party Claim (a "Third Party Claim Notice") promptly following receipt by such Indemnitee of written or oral notice of the Third Party Claim, which notification, to be a valid Third Party Claim Notice (a "Valid Third Party Claim Notice"), must be accompanied by a copy of the written notice, if any, of the Third Party claimant to the Indemnitee asserting the Third Party Claim, or, if such Third Party Claim shall not have been made in writing, the written notice of Indemnitee certifying as to the receipt by Indemnitee of the oral Third Party Claim, and, in each case, setting forth in reasonable detail, the facts then known by Indemnitee with respect to such Third Party Claim; provided, however, that the failure to provide such Notice promptly (so long as a Valid Third Party Claim Notice is given before the expiration of the applicable survival period for a representation or warranty in Section 8.1, an Indemnified Party (or Seller or BuyerIndemnification Period and any extensions thereof, as applicable, on behalf thereof) determines in good faith that it has a bona fide claim for indemnification pursuant shall not affect the obligations of the Indemnitor hereunder except to this ARTICLE VIII, such Indemnified Party may the extent the Indemnitor is actually prejudiced thereby. The Indemnitee shall deliver to the Indemnifying Indemnitor copies of all other notices and documents (including court papers) received by the Indemnitee relating to the Third Party a certificate signed by any officer of the Indemnified Party (any certificate delivered in accordance with the provisions of this Section 8.9(a), an “Officer’s Claim Certificate”):
(i) stating that an Indemnified Party has a claim for indemnification pursuant to this ARTICLE VIII;Claim.
(ii) The Indemnitor shall have the right to defend against any such Third Party Claim (including the conduct of any proceedings or settlement negotiations, provided that the Indemnitor shall not settle any Third Party Claim without the Indemnitee's consent, which consent shall not be unreasonably withheld or delayed) with counsel of the Indemnitor's own choosing. The Indemnitee shall have the right to participate in the defense of any Third Party Claim and to employ its own counsel (it being understood that the Indemnitor shall control such defense), at the Indemnitee's own expense. Prior to the extent possibletime the Indemnitee is notified by the Indemnitor as to whether the Indemnitor will assume the defense of a Third Party Claim, containing a good faith non-binding, preliminary estimate the Indemnitee shall take all actions reasonably necessary to timely preserve the collective rights of the amount parties with respect to which such Indemnified Third Party claims Claim, including responding timely to be entitled legal process. If the Indemnitor shall decline to receive as assume the defense of a claim for indemnification pursuant Third Party Claim (or shall fail to this ARTICLE VIIInotify the Indemnitee of its election to defend such Third Party Claim) within 30 days after the giving by the Indemnitee to the Indemnitor of a Valid Third Party Claim Notice with respect to the Third Party Claim, which the Indemnitee shall defend against the Third Party Claim and the Indemnitor shall be liable to the amount of Losses such Indemnified Party claims to have so Indemnitee for all reasonable fees and expenses incurred or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed by the Indemnified Party) Indemnitee in the material facts known to the Indemnified Party giving rise to such claim. No delay in providing such Officer’s Claim Certificate prior to the expiration defense of the applicable survival period for a representation or warranty in Section 8.1 shall affect an Indemnified Party’s rights hereunderThird Party Claim, unless (including the reasonable fees and then only to the extent that) the Indemnifying Party is materially prejudiced thereby.
(b) At the time expenses of delivery of any Officer’s Claim Certificate to the Indemnifying Party, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of the Indemnified Party.
(c) If the Indemnifying Party in good faith objects to any claim made by an Indemnified Party in any Officer’s Claim Certificate, then the Indemnifying Party shall deliver a written notice (a “Claim Dispute Notice”) to the Indemnified Party during the 30-day period commencing upon receipt counsel employed by the Indemnifying Party of the Officer’s Claim Certificate. A duplicate copy of such Claim Dispute Notice shall be delivered to the Escrow Agent by or on behalf of the Indemnifying Party. The Claim Dispute Notice shall set forth in reasonable detailIndemnitee, if and to the extent that the Indemnitor is responsible to indemnify for such detail is available based upon Third Party Claim. Regardless of which party assumes the defense of a Third Party Claim, the parties agree to cooperate with one another in connection therewith. Such cooperation shall include providing records and information available which are relevant to such Indemnifying Third Party at such timeClaim, and which are not required by law to be kept confidential and making employees and officers available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder and to act as a witness or respond to legal process. Whether or not the Indemnitor assumes the defense of a Third Party Claim, the principal basis for Indemnitee shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the dispute of any claim made by the Indemnified Party in the Officer’s Claim Certificate. If the Indemnifying Party does Indemnitor's prior written consent (which consent will not deliver a Claim Dispute Notice to the Indemnified Party prior to the expiration of such 30-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in the Indemnified Party’s favor for purposes of this ARTICLE VIII on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the Escrow Account, then the Indemnified Party may direct the Escrow Agent to deliver cash from the Escrow Account to the Indemnified Party in accordance with this Section 8.9(cunreasonably withheld or delayed).
(db) If In order for an Indemnitee to be entitled to any indemnification provided for under this Article 6 in respect of a claim as to which a Third Party Claim has not been asserted against such Indemnitee (an "Other Claim"), the Indemnifying Party delivers Indemnitee must promptly notify the Indemnitor in writing of such Other Claim (the "Other Claim Notice"), which notification, to be a valid Other Claim Dispute Notice (a "Valid Other Claim Notice"), then must certify that the Indemnified Party and the Indemnifying Party shall attempt Indemnitee has in good faith already sustained some (though not necessarily all) Losses, or has a good faith basis to resolve believe Losses may be sustained, with respect to such claim. The failure by any such objections raised by Indemnitee to notify the Indemnifying Party in such Indemnitor promptly (so long as a Valid Other Claim Dispute Notice. If the Indemnified Party and the Indemnifying Party agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by the Indemnified Party and the Indemnifying Party shall be prepared and signed by both parties and, if cash remains in the Escrow Account, promptly delivered to the Escrow Agent, together with a Joint Direction (as defined in the Escrow Agreement) from Buyer and Seller pursuant to Section 4(b) of the Escrow Agreement directing the Escrow Agent to distribute cash from the Escrow Account in accordance with the terms of such memorandum.
(e) If no such resolution can be reached during the 45-day period following the Indemnified Party’s receipt of a Notice is given Claim Dispute Notice, then upon before the expiration of the Indemnification Period) shall not relieve the Indemnitor from any liability that it may have to such 45-day periodIndemnitee under Section 6.2, either except to the Indemnified Party or extent that the Indemnifying Party may bring suit to resolve the objection in accordance with Section 9.1 and Section 9.13Indemnitor has been actually prejudiced by such failure.
Appears in 1 contract
Procedures for Claims. If a claim for Damages (aa "Claim") If at any time prior is to be made by a person entitled to indemnification hereunder, the person claiming such indemnification (the "Indemnified Party") shall give written notice (a "Claim Notice") to the expiration of indemnifying person (the applicable survival period for a representation or warranty in Section 8.1, an "Indemnifying Party") reasonably promptly after the Indemnified Party (becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 10, provided that if the Indemnified Party is a Seller or Buyer, as applicable, on behalf thereof) determines in good faith that it has a bona fide claim for indemnification pursuant to this ARTICLE VIIIIndemnified Party, such Claim Notice shall only be valid if it is delivered by the Seller Representative, and provided further that if the Indemnified Party may deliver is a Buyer Indemnified Party, such Claim Notice shall be valid if it is delivered to the Seller Representative. The failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder, except and only to the extent that, the Indemnifying Party a certificate signed demonstrates actual material damage caused by any officer of the Indemnified Party (any certificate delivered in accordance with the provisions of this Section 8.9(a)such failure, an “Officer’s Claim Certificate”):
(i) stating that an Indemnified Party has a claim for indemnification pursuant to this ARTICLE VIII;
(ii) to the extent possible, containing a good faith non-binding, preliminary estimate of the amount to which such Indemnified Party claims to be entitled to receive as a claim for indemnification pursuant to this ARTICLE VIII, which shall be the amount of Losses such Indemnified Party claims to have so incurred or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed by the Indemnified Party) the material facts known to the Indemnified Party giving rise to such claim. No delay in providing such Officer’s Claim Certificate prior to the expiration of the applicable survival period for a representation or warranty in Section 8.1 shall affect an Indemnified Party’s rights hereunder, unless (and then only to the extent thatthereof. In the case of a Claim involving the assertion of a claim by a third party (whether pursuant to a lawsuit, other legal action or otherwise, a "Third-Party Claim"), if the Indemnifying Party shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated to indemnify the Indemnified Party under the terms of its indemnity hereunder in connection with such Third-Party Claim, then (A) the Indemnifying Party is materially prejudiced thereby.
shall be entitled and, if it so elects, shall be obligated at its own cost, risk and expense, (b1) At to take control of the time defense and investigation of delivery such Third-Party Claim and (2) to pursue the defense thereof in good faith by appropriate actions or proceedings promptly taken or instituted and diligently pursued, including, without limitation, to employ and engage attorneys of any Officer’s Claim Certificate its own choice reasonably acceptable to the Indemnified Party to handle and defend the same, and (B) the Indemnifying Party shall be entitled (but not obligated), if it so elects, to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. In the event the Indemnifying Party elects to assume control of the defense and investigation of such lawsuit or other legal action in accordance with this Section 10.2, the Indemnified Party may, at its own cost and expense, participate in the investigation, trial and defense of such Third-Party Claim, provided that if the named persons to a lawsuit or other legal action include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of the Indemnified Party.
(c) If the Indemnifying Party in good faith objects to any claim made by an Indemnified Party in any Officer’s Claim Certificate, then the Indemnifying Party shall deliver a written notice (a “Claim Dispute Notice”) to the Indemnified Party during the 30-day period commencing upon receipt by the Indemnifying Party of the Officer’s Claim Certificate. A duplicate copy of such Claim Dispute Notice shall be delivered to the Escrow Agent by or on behalf of entitled, at the Indemnifying Party. The Claim Dispute Notice shall set forth in reasonable detail's cost, if risk and expense, to the extent that such detail is available based upon the information available to such Indemnifying Party at such time, the principal basis for the dispute retain one firm of any claim made by the Indemnified Party in the Officer’s Claim Certificateseparate counsel of its own choosing. If the Indemnifying Party does not deliver a Claim Dispute Notice fails to assume the Indemnified Party prior to the expiration defense of such 30Third-day period, then (i) each claim for indemnification set forth in such Officer’s Party Claim Certificate shall be deemed to have been conclusively determined in the Indemnified Party’s favor for purposes of this ARTICLE VIII on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the Escrow Account, then the Indemnified Party may direct the Escrow Agent to deliver cash from the Escrow Account to the Indemnified Party in accordance with this Section 8.9(c).
10.2 within ten (d10) If calendar days after receipt of the Claim Notice, the Indemnified Party against which such Third-Party Claim has been asserted shall (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake, at the Indemnifying Party's cost, risk and expense, the defense, compromise and settlement of such Third-Party Claim on behalf of and for the account of the Indemnifying Party; provided that such Third-Party Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. In the event the Indemnifying Party delivers a Claim Dispute Noticeassumes the defense of the claim, then the Indemnifying Party shall keep the Indemnified Party reasonably informed of the progress of any such defense, compromise or settlement, and in the event the Indemnified Party assumes the defense of the claim, the Indemnified Party shall keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 10.2 and for any final judgment (subject to any right of appeal), and the Indemnifying Party shall attempt in good faith agrees to resolve any such objections raised by the Indemnifying Party in such Claim Dispute Notice. If the indemnify and hold harmless each Indemnified Party from and the Indemnifying Party agree to a resolution against any and all Damages by reason of such objection, then a memorandum setting forth the matters conclusively determined by the Indemnified Party and the Indemnifying Party shall be prepared and signed by both parties and, if cash remains in the Escrow Account, promptly delivered to the Escrow Agent, together with a Joint Direction (as defined in the Escrow Agreement) from Buyer and Seller pursuant to Section 4(b) of the Escrow Agreement directing the Escrow Agent to distribute cash from the Escrow Account in accordance with the terms of such memorandumsettlement or judgment.
(e) If no such resolution can be reached during the 45-day period following the Indemnified Party’s receipt of a given Claim Dispute Notice, then upon the expiration of such 45-day period, either the Indemnified Party or the Indemnifying Party may bring suit to resolve the objection in accordance with Section 9.1 and Section 9.13.
Appears in 1 contract
Procedures for Claims. (ai) If at Buyer, on the one hand, or any time prior Seller, on the other hand (in either case, the “Indemnified Party”), has a claim or receives actual notice of any claim, or the commencement of any proceeding that could give rise to an obligation on the expiration part of Sellers, on the applicable survival period for a representation or warranty in Section 8.1one hand, an Indemnified Party (or Seller or Buyer, as applicableon the other hand, on behalf thereofto provide indemnification (the “Indemnifying Party”) determines in good faith that it has a bona fide claim for indemnification pursuant to this ARTICLE VIIISection 10, such the Indemnified Party may deliver to shall promptly give the Indemnifying Party a certificate signed by notice thereof in writing, provided, however, that the failure to give such prompt notice shall not prevent any officer of the Indemnified Party (from being indemnified hereunder for any certificate delivered in accordance with the provisions of this Section 8.9(a)Adverse Consequences, an “Officer’s Claim Certificate”):
(i) stating that an Indemnified Party has a claim for indemnification pursuant to this ARTICLE VIII;
(ii) except to the extent possible, containing a good faith non-binding, preliminary estimate of that the amount failure to which such Indemnified Party claims to be entitled to receive as a claim for indemnification pursuant to this ARTICLE VIII, which shall be the amount of Losses such Indemnified Party claims to have so incurred or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed by the Indemnified Party) the material facts known to the Indemnified Party giving rise to such claim. No delay in providing such Officer’s Claim Certificate prior to the expiration of the applicable survival period for a representation or warranty in Section 8.1 shall affect an Indemnified Party’s rights hereunder, unless (and then only to the extent that) the Indemnifying Party is materially prejudiced thereby.
(b) At the time of delivery of any Officer’s Claim Certificate to promptly notify the Indemnifying Party, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of the Indemnified Party.
(c) If the Indemnifying Party in good faith objects to any claim made by an Indemnified Party in any Officer’s Claim Certificate, then the Indemnifying Party shall deliver a written notice (a “Claim Dispute Notice”) to the Indemnified Party during the 30-day period commencing upon receipt by the Indemnifying Party of the Officer’s Claim Certificate. A duplicate copy of such Claim Dispute Notice shall be delivered to the Escrow Agent by or on behalf of actually damages the Indemnifying Party. The Claim Dispute Notice Indemnifying Party will have forty-five (45) days from receipt of any such notice to give written notice of dispute of the claim to the Indemnifying Party. Failure of the Indemnifying Party to notify the Indemnified Party within forty-five (45) days from the receipt of such notice that the Indemnifying Party disputes its liability to the Indemnified Party shall set forth in reasonable detail, if and be deemed a liability of the Indemnifying Party only to the extent that such detail the Indemnified Party is available based upon actually damaged thereby. The Indemnified Party will reasonably cooperate and assist the information available to such Indemnifying Party at such time, in determining the principal basis for the dispute validity of any claim made for indemnity by the Indemnified Party and in otherwise resolving such matters. Such assistance and cooperation will include providing reasonable access to and copies of information, records and documents relating to such matters, furnishing employees to assist in the Officer’s Claim Certificate. investigation, defense and resolution of such matters and providing legal and business assistance with respect to such matter.
(ii) If any of the matters as to which an Indemnified Party is entitled to receive indemnification under this Section 10 should entail any proceeding with or claims asserted by parties other than an Indemnifying Party, the Indemnifying Party does not deliver a Claim Dispute Notice shall have the right, at its expense, to control such claim or litigation, through counsel reasonably acceptable to the Indemnified Party, upon prompt notice to the Indemnified Party prior of its election to do so, and provided that the expiration of Indemnifying Party proceeds to and continues to defend such 30-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate a diligent manner. The Indemnifying Party shall be deemed to have been conclusively determined in the Indemnified Party’s favor for purposes of this ARTICLE VIII on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the Escrow Account, then keep the Indemnified Party may direct the Escrow Agent informed of all material developments relating to deliver cash from the Escrow Account any such claim and, to the extent requested by an Indemnifying Party, an Indemnified Party, shall cooperate with and assist the Indemnifying Party, in connection with such claim or litigation. An Indemnified Party in accordance shall have the right to appoint, at its expense, legal counsel to consult with this Section 8.9(c).
(d) If the Indemnifying Party delivers a Claim Dispute Notice, then the Indemnified Party and the Indemnifying Party shall attempt in good faith to resolve any such objections raised remain advised by the Indemnifying Party in connection with such Claim Dispute Noticeclaim or litigation. If the Indemnified Party and the Indemnifying Party agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by the Indemnified Party and the An Indemnifying Party shall have final authority to determine all matters in connection with such claim or litigation; provided, however, that an Indemnifying Party shall not settle any third-party claim without the consent of an Indemnified Party, which shall not be prepared unreasonably denied or delayed, unless the judgment or proposed settlement involves only the payment of money damages and signed by both parties and, if cash remains in the Escrow Account, promptly delivered to the Escrow Agent, together with a Joint Direction (as defined in the Escrow Agreement) from Buyer and Seller pursuant to Section 4(b) of the Escrow Agreement directing the Escrow Agent to distribute cash from the Escrow Account in accordance with the terms of such memorandum.
(e) If no such resolution can be reached during the 45-day period following does not impose an injunction or other equitable relief upon the Indemnified Party’s receipt of a given Claim Dispute Notice, then upon the expiration of such 45-day period, either the Indemnified Party or the Indemnifying Party may bring suit to resolve the objection in accordance with Section 9.1 and Section 9.13which case no consent shall be required hereunder.
Appears in 1 contract
Procedures for Claims. (a) If at any time prior In the event that Buyer seeks indemnification on behalf of a Buyer Indemnified Person, or Parent and the Seller seek indemnification on behalf of a Seller Indemnified Person, such Party seeking indemnification (the “Indemnified Party”) shall give reasonably prompt written notice to the expiration of Party from whom indemnification is sought (the applicable survival period “Indemnifying Party”) specifying the facts constituting the basis for a representation or warranty in Section 8.1such claim and the amount, an Indemnified Party (or Seller or Buyer, as applicable, on behalf thereof) determines in good faith that it has a bona fide claim for indemnification pursuant to this ARTICLE VIII, such Indemnified Party may deliver to the Indemnifying Party a certificate signed by any officer of the Indemnified Party (any certificate delivered in accordance with the provisions of this Section 8.9(a), an “Officer’s Claim Certificate”):
(i) stating that an Indemnified Party has a claim for indemnification pursuant to this ARTICLE VIII;
(ii) to the extent possibleknown, containing a good faith non-binding, preliminary estimate of the amount to which such Indemnified Party claims claim asserted; provided, however, that the right of a Person to be entitled indemnified hereunder shall not be adversely affected by a failure to receive as a claim for indemnification pursuant to this ARTICLE VIIIgive such notice unless, which shall be the amount of Losses such Indemnified Party claims to have so incurred or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed by the Indemnified Party) the material facts known to the Indemnified Party giving rise to such claim. No delay in providing such Officer’s Claim Certificate prior to the expiration of the applicable survival period for a representation or warranty in Section 8.1 shall affect an Indemnified Party’s rights hereunder, unless (and then only to the extent that) , an Indemnifying Party is actually and materially damaged thereby. Subject to the terms hereof, the Indemnifying Party is materially prejudiced therebyshall pay (by wire transfer of immediately available funds) the amount of any valid claim not more than 60 days after the Indemnified Party provides notice to the Indemnifying Party of such amount.
(b) At If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant other than an Indemnified Party hereunder (a “Third Person”), the time Indemnified Party shall give the Indemnifying Party prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of delivery a Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give promptly such notice unless, and then only to the extent that, an Indemnifying Party is actually and materially prejudiced thereby. Except as otherwise provided in this Section 8.4, the Indemnifying Party shall have the right, upon the giving of (i) written notice to the Indemnified Party and (ii) an unconditional acknowledgement that based on the facts alleged in the claim, the Indemnified Party is obligated to indemnify the Persons to be indemnified hereunder with respect to such Third Person claim, to investigate, contest, and defend the claim alleged by such Third Person (a “Third Person Claim”), provided that the Indemnifying Party may not settle the Third Person Claim without the consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed), unless the settlement (i) involves only money damages which will be paid entirely by the Indemnifying Party and (ii) includes a complete release of the Indemnified Party. The Indemnified Party may thereafter participate in (but not control) the defense of any Officer’s such Third Person Claim Certificate with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party; provided, however, that the Indemnifying Party need only pay the reasonable fees and disbursements of one counsel to all of the Indemnified Parties. Notwithstanding anything to the contrary contained in this Section 8.4, in connection with any Third Person Claim where (w) the Indemnifying Party fails or refuses to acknowledge within thirty (30) days of its receipt of the notice referred to in the first sentence of this Section 8.4(b) that based on the facts alleged in the claim, the Indemnifying Party is obligated to indemnify the Persons to be indemnified hereunder with respect to such Third Person Claim, (x) there is a credible threat of any material relief other than solely monetary damages being granted, (y) there is a substantial conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Person Claim or (z) there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which are reasonably likely to be materially adverse to the Indemnifying Party, a duplicate copy then the Indemnified Party shall have the right to assume and direct the defense of such Officer’s Claim Certificate shall be delivered Third Person Claim, subject to the Escrow Agent by or on behalf limitations set forth in this Section. In such an event, the Indemnifying Party need only pay the reasonable fees and disbursements of counsel of the Indemnifying Party and one counsel to all of the Indemnified Parties. If the Indemnified Party otherwise exercises its rights contained herein to assume and direct the defense of such Third Person Claim, (a) the Indemnified Party may defend against such claim using counsel of its choice, in such manner as it may reasonably deem appropriate, provided, however, that the Indemnified Party shall not settle the Third Person Claim without the consent of the Indemnifying Party.
, which consent shall not be unreasonably withheld or delayed, (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense, and (c) If if the Indemnifying Party in good faith objects to any claim made by an Indemnified Party in any Officer’s has assumed the defense of the Third Person Claim Certificatepursuant to clause (w) above, then the Indemnifying Party shall deliver a written have the right at any time to assume and direct the defense of the Third Person Claim by notice (a “Claim Dispute Notice”) to the Indemnified Party during containing the 30-day period commencing upon receipt by the Indemnifying Party of the Officer’s Claim Certificate. A duplicate copy of such Claim Dispute Notice shall be delivered to the Escrow Agent by or on behalf of the Indemnifying Party. The Claim Dispute Notice shall acknowledgement set forth in reasonable detail, if and to the extent that such detail is available based upon the information clause (w) above. The Parties shall make available to each other all relevant information in their possession relating to any such Indemnifying Party at such time, the principal basis for the dispute of any claim made by the Indemnified Party Third Person Claim and shall cooperate in the Officer’s Claim Certificate. If the Indemnifying Party does not deliver a Claim Dispute Notice to the Indemnified Party prior to the expiration of such 30-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in the Indemnified Party’s favor for purposes of this ARTICLE VIII on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the Escrow Account, then the Indemnified Party may direct the Escrow Agent to deliver cash from the Escrow Account to the Indemnified Party in accordance with this Section 8.9(c)defense thereof.
(d) If the Indemnifying Party delivers a Claim Dispute Notice, then the Indemnified Party and the Indemnifying Party shall attempt in good faith to resolve any such objections raised by the Indemnifying Party in such Claim Dispute Notice. If the Indemnified Party and the Indemnifying Party agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by the Indemnified Party and the Indemnifying Party shall be prepared and signed by both parties and, if cash remains in the Escrow Account, promptly delivered to the Escrow Agent, together with a Joint Direction (as defined in the Escrow Agreement) from Buyer and Seller pursuant to Section 4(b) of the Escrow Agreement directing the Escrow Agent to distribute cash from the Escrow Account in accordance with the terms of such memorandum.
(e) If no such resolution can be reached during the 45-day period following the Indemnified Party’s receipt of a given Claim Dispute Notice, then upon the expiration of such 45-day period, either the Indemnified Party or the Indemnifying Party may bring suit to resolve the objection in accordance with Section 9.1 and Section 9.13.
Appears in 1 contract
Samples: Limited Liability Company Interest Purchase Agreement (SPX Corp)
Procedures for Claims. (ai) If at In order for an Indemnitee to be entitled to any time prior remedy provided for under this Article 6 in respect of, arising out of or involving a claim made by any Third Party against the Indemnitee or an Affiliate (a "Third Party Claim"), the Indemnitee must notify the Indemnitor in writing of the Third Party Claim (a "Third Party Claim Notice") promptly following receipt by such Indemnitee of written or oral notice of the Third Party Claim, which notification, to be a valid Third Party Claim Notice (a "Valid Third Party Claim Notice"), must be accompanied by a copy of the written notice, if any, of the Third Party claimant to the Indemnitee asserting the Third Party Claim, or, if such Third Party Claim shall not have been made in writing, the written notice of Indemnitee certifying as to the receipt by Indemnitee of the oral Third Party Claim, and, in each case, setting forth in reasonable detail, the facts then known by Indemnitee with respect to such Third Party Claim; provided, however, that the failure to provide such Notice promptly (so long as a Valid Third Party Claim Notice is given before the expiration of the applicable survival period for a representation or warranty in Section 8.1, an Indemnified Party (or Seller or BuyerIndemnification Period and any extensions thereof, as applicable, on behalf thereof) determines in good faith that it has a bona fide claim for indemnification pursuant shall not affect the obligations of the Indemnitor hereunder except to this ARTICLE VIII, such Indemnified Party may the extent the Indemnitor is actually prejudiced thereby. The Indemnitee shall deliver to the Indemnifying Indemnitor copies of all other notices and documents (including court papers) received by the Indemnitee relating to the Third Party a certificate signed by any officer of the Indemnified Party (any certificate delivered in accordance with the provisions of this Section 8.9(a), an “Officer’s Claim Certificate”):
(i) stating that an Indemnified Party has a claim for indemnification pursuant to this ARTICLE VIII;Claim.
(ii) The Indemnitor shall have the right to defend against any such Third Party Claim (including the conduct of any proceedings or settlement negotiations, provided that the Indemnitor shall not settle any Third Party Claim without the Indemnitee's consent, which consent shall not be unreasonably withheld or delayed) with counsel of the Indemnitor's own choosing. The Indemnitee shall have the right to participate in the defense of any Third Party Claim and to employ its own counsel (it being understood that the Indemnitor shall control such defense), at the Indemnitee's own expense. Prior to the extent possibletime the Indemnitee is notified by the Indemnitor as to whether the Indemnitor will assume the defense of a Third Party Claim, containing a good faith non-binding, preliminary estimate the Indemnitee shall take all actions reasonably necessary to timely preserve the collective rights of the amount parties with respect to which such Indemnified Third Party claims Claim, including responding timely to be entitled legal process. If the Indemnitor shall decline to receive as assume the defense of a claim for indemnification pursuant Third Party Claim (or shall fail to this ARTICLE VIIInotify the Indemnitee of its election to defend such Third Party Claim) within 30 days after the giving by the Indemnitee to the Indemnitor of a Valid Third Party Claim Notice with respect to the Third Party Claim, which the Indemnitee shall defend against the Third Party Claim and the Indemnitor shall be liable to the amount of Losses such Indemnified Party claims to have so Indemnitee for all reasonable fees and expenses incurred or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed by the Indemnified Party) Indemnitee in the material facts known to the Indemnified Party giving rise to such claim. No delay in providing such Officer’s Claim Certificate prior to the expiration defense of the applicable survival period for a representation or warranty in Section 8.1 shall affect an Indemnified Party’s rights hereunderThird Party Claim, unless (including the reasonable fees and then only to the extent that) the Indemnifying Party is materially prejudiced thereby.
(b) At the time expenses of delivery of any Officer’s Claim Certificate to the Indemnifying Party, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of the Indemnified Party.
(c) If the Indemnifying Party in good faith objects to any claim made by an Indemnified Party in any Officer’s Claim Certificate, then the Indemnifying Party shall deliver a written notice (a “Claim Dispute Notice”) to the Indemnified Party during the 30-day period commencing upon receipt counsel employed by the Indemnifying Party of the Officer’s Claim Certificate. A duplicate copy of such Claim Dispute Notice shall be delivered to the Escrow Agent by or on behalf of the Indemnifying Party. The Claim Dispute Notice shall set forth in reasonable detailIndemnitee, if and to the extent that the Indemnitor is responsible to indemnify for such detail is available based upon Third Party Claim. Regardless of which party assumes the defense of a Third Party Claim, the parties agree to cooperate with one another in connection therewith. Such cooperation shall include providing records and information available which are relevant to such Indemnifying Third Party at such timeClaim, and which are not required by law to be kept confidential and making employees and officers available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder and to act as a witness or respond to legal process. Whether or not the Indemnitor assumes the defense of a Third Party Claim, the principal basis for Indemnitee shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the dispute of any claim made by the Indemnified Party in the Officer’s Claim Certificate. If the Indemnifying Party does Indemnitor's prior written consent (which consent will not deliver a Claim Dispute Notice to the Indemnified Party prior to the expiration of such 30-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in the Indemnified Party’s favor for purposes of this ARTICLE VIII on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the Escrow Account, then the Indemnified Party may direct the Escrow Agent to deliver cash from the Escrow Account to the Indemnified Party in accordance with this Section 8.9(cunreasonably withheld or delayed).
(db) If In order for an Indemnitee to be entitled to any indemnification provided for under this Article 6 in respect of a claim as to which a Third Party Claim has not been asserted against such Indemnitee (an "Other Claim"), the Indemnifying Party delivers Indemnitee must promptly notify the Indemnitor in writing of such Other Claim (the "Other Claim Notice"), which notification, to be a valid Other Claim Dispute Notice (a "Valid Other Claim Notice"), then must certify that the Indemnified Party and the Indemnifying Party shall attempt Indemnitee has in good faith already sustained some (though not necessarily all) Losses, or has a good faith basis to resolve believe Losses may be sustained, with respect to such claim. The failure by any such objections raised by Indemnitee to notify the Indemnifying Party in such Indemnitor promptly (so long as a Valid Other Claim Dispute Notice. If the Indemnified Party and the Indemnifying Party agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by the Indemnified Party and the Indemnifying Party shall be prepared and signed by both parties and, if cash remains in the Escrow Account, promptly delivered to the Escrow Agent, together with a Joint Direction (as defined in the Escrow Agreement) from Buyer and Seller pursuant to Section 4(b) of the Escrow Agreement directing the Escrow Agent to distribute cash from the Escrow Account in accordance with the terms of such memorandum.
(e) If no such resolution can be reached during the 45-day period following the Indemnified Party’s receipt of a Notice is given Claim Dispute Notice, then upon before the expiration of the Indemnification Period) shall not relieve the Indemnitor from any liability that it may have to such 45-day periodIndemnitee under Section 6.2, either except to the Indemnified Party or extent that the Indemnifying Party may bring suit to resolve the objection in accordance with Section 9.1 and Section 9.13Indemnitor has been actually prejudiced by such failure.
Appears in 1 contract
Procedures for Claims. Indemnified Party
(a) If at In the event that any time prior Person entitled to indemnification under this Agreement (an the expiration assertion of any claim or of the applicable survival period for commencement of any Action Third Party Claim Indemnified Party, with respect to which a representation Party is or warranty in Section 8.1, an Indemnified may be required to provide indemnification under Indemnifying Party (or Seller or Buyer, as applicable, on behalf thereof) determines in good faith that it has a bona fide claim for indemnification pursuant to this ARTICLE VIII, such Indemnified Party may deliver to the Indemnifying Party a certificate signed by any officer within ten (10) days after learning of such claim. Subject to Section 8.3(d) below, the Indemnified Indemnifying Party (any certificate delivered in accordance with shall have the provisions of this Section 8.9(a), an “Officer’s Claim Certificate”):
(i) stating that an Indemnified Party has a claim for indemnification pursuant to this ARTICLE VIII;
(ii) to the extent possible, containing a good faith non-binding, preliminary estimate of the amount to which such Indemnified Party claims to be entitled to receive as a claim for indemnification pursuant to this ARTICLE VIIIright, which shall be exercised by delivering written notice to the amount of Losses such Indemn Defense Notice Indemnified Party claims of notice of such claim, which notice by the Indemnifying Party shall specify the counsel it will appoint to have so incurred defend such claim, to conduct at its expense the defense against such claim in its own name, or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying if necessary in reasonable detail (based upon the information then possessed by name of the Indemnified Party) the material facts known to ; provided, however, that the Indemnified Party giving rise shall have the right to approve such claimdefense counsel, which approval shall not be unreasonably withheld or delayed. No delay in providing such Officer’s Claim Certificate prior to the expiration of the applicable survival period for a representation or warranty in Section 8.1 shall affect A failure by an Indemnified Party’s Party to give timely, complete or accurate notice as provided in this Section 8.3 will not affect the rights hereunder, unless (or obligations of any Party except and then only to the extent that) the , as a result of such failure, any Indemnifying Party is materially prejudiced therebyentitled to receive such notice was damaged as a result of such failure to give timely, complete or accurate notice.
(b) At In the time event that the Indemnifying Party shall fail to give the Defense Notice within said thirty (30) day period, it shall be deemed to have elected not to conduct the defense of delivery the subject claim, and in such event the Indemnified Party shall have the right to conduct the defense in good faith and appoint defense counsel and to consent to the entry of any Officer’s judgment or compromise and settle the Third Party Claim Certificate in good faith with the prior consent of the Indemnifying Party only to the Indemnifying Party, a duplicate copy extent of such Officer’s Claim Certificate shall Indemnify unreasonably withheld, conditioned or delayed), unless as a result of such compromise or settlement, the Indemnifying Party would be delivered subject to the Escrow Agent by injunction or on behalf of the Indemnified Partyother equitable remedy.
(c) If In the event that the Indemnifying Party in good faith objects does deliver a Defense Notice and thereby elects to any claim made by an Indemnified conduct the defense of the subject Third Party in any Officer’s Claim CertificateClaim, then the Indemnifying Party shall deliver a conduct the defense in good faith at its expense and shall have the right to consent to the entry of any judgment or compromise and settle the Third Party Claim in good faith without prior consent of the Indemnified Party; provided, however, that no Indemnifying Party shall consent to the entry of any judgment or compromise or enter into any settlement without the prior written notice (a “Claim Dispute Notice”) to consent of the Indemnified Party during if (i) such judgment or settlement does not include as an unconditional term thereof the 30-day period commencing upon receipt giving by the Indemnifying each claimant or plaintiff to each Indemnified Party of the Officer’s Claim Certificate. A duplicate copy of such Claim Dispute Notice shall be delivered to the Escrow Agent by or on behalf of the Indemnifying Party. The Claim Dispute Notice shall set forth a full release from all Liability in reasonable detail, if and to the extent that such detail is available based upon the information available respect to such Indemnifying Third Party at Claim, (ii) such time, judgment or settlement would result in the principal basis for the dispute finding or admission of any claim made by violation of any Legal Requirement, (iii) such judgment or settlement would impose Liability on the part of the Indemnified Party in the Officer’s Claim Certificate. If the Indemnifying Party does not deliver a Claim Dispute Notice to for which the Indemnified Party prior is not entitled to the expiration of such 30-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in the Indemnified Party’s favor for purposes of this ARTICLE VIII on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the Escrow Account, then the Indemnified Party may direct the Escrow Agent to deliver cash from the Escrow Account to the Indemnified Party in accordance with this Section 8.9(c).
(d) If the Indemnifying Party delivers a Claim Dispute Notice, then the Indemnified Party and the Indemnifying Party shall attempt in good faith to resolve any such objections raised by the Indemnifying Party in such Claim Dispute Notice. If the Indemnified Party and the Indemnifying Party agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by the Indemnified Party and the Indemnifying Party shall be prepared and signed by both parties and, if cash remains in the Escrow Account, promptly delivered to the Escrow Agent, together with a Joint Direction (as defined in the Escrow Agreement) from Buyer and Seller pursuant to Section 4(b) of the Escrow Agreement directing the Escrow Agent to distribute cash from the Escrow Account in accordance with the terms of such memorandum.
(e) If no such resolution can be reached during the 45-day period following the Indemnified Party’s receipt of a given Claim Dispute Notice, then upon the expiration of such 45-day period, either the Indemnified Party or the Indemnifying Party may bring suit to resolve the objection in accordance with Section 9.1 and Section 9.13.hereunder or
Appears in 1 contract
Samples: Stock Purchase Agreement
Procedures for Claims. (a) If at (i) In order for an indemnified party to be entitled to any time prior indemnification provided for under this ARTICLE XIII in respect of, arising out of or involving a claim made by any third party, including a Governmental Authority, against the indemnified party (a “Third Party Claim”), the indemnified party must notify the indemnifying party in writing of the Third Party Claim (a “Third Party Claim Notice”) promptly following receipt by such indemnified party of written notice of the Third Party Claim, which notification, to be a valid Third Party Claim Notice, with the effect set forth in Section 13.1 and Section 13.2 (a “Valid Third Party Claim Notice”), must be accompanied by a copy of the notice of the third party claimant to the indemnified party asserting the Third Party Claim; provided, that the failure to provide such notice promptly (so long as a Valid Third Party Claim Notice is given before the expiration of the applicable survival period for a representation or warranty set forth in Section 8.1, an Indemnified Party (or Seller or Buyer, as applicable, on behalf thereof13.1) determines in good faith that it has a bona fide claim for indemnification pursuant shall not affect the obligations of the indemnifying party hereunder except to this ARTICLE VIII, such Indemnified Party may the extent the indemnifying party is prejudiced thereby. The indemnified party shall deliver to the Indemnifying indemnifying party copies of all other notices and documents (including court papers) received by the indemnified party relating to the Third Party a certificate signed by any officer of the Indemnified Party (any certificate delivered in accordance with the provisions of this Section 8.9(a), an “Officer’s Claim Certificate”):
(i) stating that an Indemnified Party has a claim for indemnification pursuant to this ARTICLE VIII;Claim.
(ii) The indemnifying party shall have the right to defend against any such Third Party Claim (including to conduct any proceedings or settlement negotiations) with counsel of its own choosing if (A) the indemnifying party provides written notice to the extent possibleindemnified party that the indemnifying party intends to undertake such defense, containing a good faith non-binding, preliminary estimate (B) the indemnifying party conducts the defense of the amount to which such Indemnified Third Party claims to be entitled to receive as a claim for indemnification pursuant to this ARTICLE VIII, which shall be the amount of Losses such Indemnified Party claims to have so incurred or suffered or could Claim actively and diligently with counsel reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed by the Indemnified Party) the material facts known satisfactory to the Indemnified Party giving rise to such claim. No delay in providing such Officer’s Claim Certificate prior indemnified party, and (C) if the indemnifying party is a party to the expiration Third Party Claim, the indemnified party has not determined, reasonably and in good faith, after consultation with legal counsel, that joint representation would be inappropriate because of a conflict of interest. The indemnified party shall have the right to participate in the defense of any Third Party Claim and to employ its own counsel (it being understood that, if all of the applicable survival period for a representation or warranty in Section 8.1 shall affect an Indemnified Party’s rights hereunder, unless (and then only to the extent that) the Indemnifying Party is materially prejudiced thereby.
(b) At the time of delivery of any Officer’s Claim Certificate to the Indemnifying Party, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of the Indemnified Party.
(c) If the Indemnifying Party in good faith objects to any claim made by an Indemnified Party in any Officer’s Claim Certificate, then the Indemnifying Party shall deliver a written notice (a “Claim Dispute Notice”) to the Indemnified Party during the 30-day period commencing upon receipt by the Indemnifying Party of the Officer’s Claim Certificate. A duplicate copy of such Claim Dispute Notice shall be delivered to the Escrow Agent by or on behalf of the Indemnifying Party. The Claim Dispute Notice shall conditions set forth in clauses (A) to (C) above remain satisfied, the indemnifying party shall control such defense), at the indemnified party’s own expense. Prior to the time the indemnified party is notified by the indemnifying party as to whether the indemnifying party will assume the defense of a Third Party Claim, the indemnified party shall take all actions reasonably necessary to timely preserve the collective rights of the parties with respect to such Third Party Claim, including responding timely to legal process. If the indemnifying party shall decline to assume the defense of a Third Party Claim (or shall fail to notify the indemnified party of its election to defend such Third Party Claim) within 30 days after the giving by the indemnified party to the indemnifying party of a Valid Third Party Claim Notice with respect to the Third Party Claim or if any of the conditions set forth in clauses (A) to (C) above are no longer satisfied, the indemnified party shall defend against the Third Party Claim and the indemnifying party shall be liable to the indemnified party for all reasonable detailfees and expenses incurred by the indemnified party in the defense of the Third Party Claim, including the reasonable fees and expenses of counsel employed by the indemnified party, if and to the extent that the indemnifying party is responsible to indemnify for such detail is available based upon Third Party Claim. Regardless of which party assumes the defense of a Third Party Claim, the parties agree to cooperate with one another in connection therewith. Such cooperation shall include providing records and information available that are relevant to such Indemnifying Third Party at such timeClaim, and making employees and officers available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder and to act as a witness or respond to legal process. Whether or not the indemnifying party assumes the defense of a Third Party Claim, the principal basis for indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the dispute of any claim made by the Indemnified Party in the Officerindemnifying party’s Claim Certificateprior written consent. If the Indemnifying indemnifying party assumes the defense of a Third Party does not deliver a Claim Dispute Notice Claim, no compromise or settlement of such claim may be effected by the indemnifying party without the indemnified party’s consent unless (A) there is no finding or admission of any violation of Law or any violation of the rights of any Person and no material adverse effect on the indemnified party with respect to any other claims that may be made against it, (B) the sole relief provided is monetary damages, is fully paid by the indemnifying party, and (C) the indemnified party is fully released. Notwithstanding anything in this Section 13.3(a)(ii) to the Indemnified Party prior contrary, if such third party claim would give rise to Damages and less than 50% of such Damages are indemnifiable by the indemnifying party pursuant to this ARTICLE XIII because of the Deductible or the Cap, the indemnified party may elect to retain control of such defense, and the indemnifying party shall be responsible for the cost and expense of the indemnified party to the expiration of such 30-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed extent required pursuant to have been conclusively determined in the Indemnified Party’s favor for purposes of this ARTICLE VIII on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the Escrow Account, then the Indemnified Party may direct the Escrow Agent to deliver cash from the Escrow Account to the Indemnified Party in accordance with this Section 8.9(c)XIII.
(d) If the Indemnifying Party delivers a Claim Dispute Notice, then the Indemnified Party and the Indemnifying Party shall attempt in good faith to resolve any such objections raised by the Indemnifying Party in such Claim Dispute Notice. If the Indemnified Party and the Indemnifying Party agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by the Indemnified Party and the Indemnifying Party shall be prepared and signed by both parties and, if cash remains in the Escrow Account, promptly delivered to the Escrow Agent, together with a Joint Direction (as defined in the Escrow Agreement) from Buyer and Seller pursuant to Section 4(b) of the Escrow Agreement directing the Escrow Agent to distribute cash from the Escrow Account in accordance with the terms of such memorandum.
(e) If no such resolution can be reached during the 45-day period following the Indemnified Party’s receipt of a given Claim Dispute Notice, then upon the expiration of such 45-day period, either the Indemnified Party or the Indemnifying Party may bring suit to resolve the objection in accordance with Section 9.1 and Section 9.13.
Appears in 1 contract
Procedures for Claims. (a) If at In order for an Indemnified Party to be entitled to any time prior indemnification provided for under this Article XI in respect of, arising out of or involving a claim made by any third party against the Indemnified Party (a “Third Party Claim”), the Indemnified Party must notify the Indemnifying Party in writing of the Third Party Claim (a “Third Party Claim Notice”) promptly following receipt by such Indemnified Party of notice of the Third Party Claim, which notification, to be a valid Third Party Claim Notice, with the effect set forth in Sections 11.1 and 11.2 (a “Valid Third Party Claim Notice”), must be accompanied by a copy of the written notice (if any) of the third party claimant to the Indemnified Party asserting the Third Party Claim; provided, that the failure to provide such notice promptly (so long as a Valid Third Party Claim Notice is given before the expiration of the applicable survival period for a representation or warranty set forth in Section 8.1, an 11.1) shall not affect the obligations of the Indemnifying Party hereunder except to the extent the Indemnifying Party is prejudiced thereby. The Indemnified Party (or Seller or Buyer, as applicable, on behalf thereof) determines in good faith that it has a bona fide claim for indemnification pursuant to this ARTICLE VIII, such Indemnified Party may shall promptly deliver to the Indemnifying Party a certificate signed copies of all other notices and documents (including court papers) received by any officer of the Indemnified Party relating to the Third Party Claim.
(b) The Indemnifying Party shall have the right to assume the defense against any certificate delivered such Third Party Claim (including to conduct and control any proceedings or settlement negotiations) with counsel of its own choosing. The Indemnified Party shall have the right to participate in accordance the defense of any Third Party Claim and to employ its own counsel (it being understood that the Indemnifying Party shall control such defense), at its own cost and expense. Prior to the time the Indemnified Party is notified by the Indemnifying Party as to whether the Indemnifying Party will assume the defense of a Third Party Claim, the Indemnified Party shall take all actions reasonably necessary to timely preserve the collective rights of the parties with respect to such Third Party Claim, including responding timely to legal process. If the Indemnifying Party shall decline to assume the defense of a Third Party Claim (or shall fail to notify the Indemnified Party of its election to defend such Third Party Claim) within 30 days after the giving by the Indemnified Party to the Indemnifying Party of a Valid Third Party Claim Notice, the Indemnified Party shall defend against the Third Party Claim and the Indemnifying Party shall be liable to the Indemnified Party for all reasonable fees and expenses incurred by the Indemnified Party in the defense of the Third Party Claim, including the reasonable fees and expenses of counsel employed by the Indemnified Party, if and to the extent that the Indemnifying Party is responsible to indemnify the Indemnified Party for such Third Party Claim under this Agreement. 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 or delayed. Regardless of which party assumes the defense of a Third Party Claim, the parties agree to cooperate in good faith and in all respects with one another and each other’s representatives (including counsel) in connection with the provisions investigation, negotiation, settlement, trial and/or defense of this Section 8.9(aany Third Party Claim or legal proceeding (and any appeal arising therefrom). Such cooperation shall include providing records and information that are relevant to such Third Party Claim, an “Officer’s Claim Certificate”):and making employees and officers available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder and to act as a witness or respond to legal process. The parties shall cooperate with each other in any notifications to and information requests of any insurers.
(ic) stating that In order for an Indemnified Party has a claim for indemnification pursuant to this ARTICLE VIII;
(ii) to the extent possible, containing a good faith non-binding, preliminary estimate of the amount to which such Indemnified Party claims to be entitled to receive as any indemnification provided for under this Article XI in respect of a claim for indemnification pursuant to this ARTICLE VIII, which shall be the amount of Losses that does not involve a Third Party Claim being asserted against such Indemnified Party claims to have so incurred or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed by the Indemnified Party) the material facts known to an “Other Claim”), the Indemnified Party giving rise must promptly notify the Indemnifying Party in writing of such Other Claim (the “Other Claim Notice”), which notification, to be a valid Other Claim Notice, with the effect set forth in Sections 11.1 and 11.2 (a “Valid Other Claim Notice”), must certify that the Indemnified Party has in good faith sustained Damages with respect to such claim. No delay in providing such Officer’s The failure by any Indemnified Party to notify the Indemnifying Party promptly of an Other Claim Certificate prior to Notice (so long as a Valid Other Claim Notice is given before the expiration of the applicable survival period for a representation or warranty set forth in Section 8.1 11.1) shall affect an Indemnified Party’s rights hereunder, unless (and then only to the extent that) not relieve the Indemnifying Party is materially prejudiced thereby.
(b) At the time of delivery of from any Officer’s Claim Certificate liability that it may have to the Indemnifying Party, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of the Indemnified Party.
(c) If the Indemnifying Party in good faith objects to any claim made by an Indemnified Party in any Officer’s Claim Certificateunder Section 11.2, then the Indemnifying Party shall deliver a written notice (a “Claim Dispute Notice”) to the Indemnified Party during the 30-day period commencing upon receipt by the Indemnifying Party of the Officer’s Claim Certificate. A duplicate copy of such Claim Dispute Notice shall be delivered to the Escrow Agent by or on behalf of the Indemnifying Party. The Claim Dispute Notice shall set forth in reasonable detail, if and except to the extent that such detail is available based upon the information available to such Indemnifying Party at such time, the principal basis for the dispute of any claim made by the Indemnified Party in the Officer’s Claim Certificate. If the Indemnifying Party does not deliver a Claim Dispute Notice to the Indemnified Party prior to the expiration of has been prejudiced by such 30-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in the Indemnified Party’s favor for purposes of this ARTICLE VIII on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the Escrow Account, then the Indemnified Party may direct the Escrow Agent to deliver cash from the Escrow Account to the Indemnified Party in accordance with this Section 8.9(c)failure.
(d) If To the Indemnifying Party delivers a Claim Dispute Notice, then the Indemnified Party extent that there is an inconsistency between this Section 11.3 and the Indemnifying Party shall attempt in good faith to resolve any such objections raised by the Indemnifying Party in such Claim Dispute Notice. If the Indemnified Party and the Indemnifying Party agree Section 9.4 as it relates to a resolution Tax Contest or another matter relating to Taxes, the provisions of such objection, then a memorandum setting forth the matters conclusively determined by the Indemnified Party and the Indemnifying Party Section 9.4 shall be prepared and signed by both parties and, if cash remains in the Escrow Account, promptly delivered to the Escrow Agent, together with a Joint Direction (as defined in the Escrow Agreement) from Buyer and Seller pursuant to Section 4(b) of the Escrow Agreement directing the Escrow Agent to distribute cash from the Escrow Account in accordance with the terms of such memorandumgovern.
(e) If no such resolution can be reached during the 45-day period following the Indemnified Party’s receipt of a given Claim Dispute Notice, then upon the expiration of such 45-day period, either the Indemnified Party or the Indemnifying Party may bring suit to resolve the objection in accordance with Section 9.1 and Section 9.13.
Appears in 1 contract
Procedures for Claims. (a) If at In the case of any time prior to the expiration claim for indemnification arising from a claim of the applicable survival period for a representation or warranty in Section 8.1third party, an Indemnified Party shall give prompt written notice, in no event more than twenty (or Seller or Buyer, as applicable, on behalf thereof20) determines in good faith that it has a bona fide claim for indemnification pursuant to this ARTICLE VIII, days following such Indemnified Party may deliver Party's receipt of such claim or demand, to the Indemnifying Party a certificate signed by of any officer of the Indemnified Party (any certificate delivered in accordance with the provisions of this Section 8.9(a), an “Officer’s Claim Certificate”):
(i) stating that an Indemnified Party has a claim for indemnification pursuant to this ARTICLE VIII;
(ii) to the extent possible, containing a good faith non-binding, preliminary estimate of the amount to or demand which such Indemnified Party claims has knowledge and as to be entitled which it may request indemnification hereunder. The Indemnifying Party shall have the right to receive as a defend and to direct the defense against any such claim for indemnification pursuant to this ARTICLE VIIIor demand, which shall be in its name or in the amount name of Losses such Indemnified Party claims to have so incurred or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed by the Indemnified Party) , as the material facts known to case may be, at the Indemnified Party giving rise to such claim. No delay in providing such Officer’s Claim Certificate prior to the expiration expense of the applicable survival period for a representation or warranty in Section 8.1 shall affect an Indemnified Party’s rights hereunder, unless (and then only to the extent that) the Indemnifying Party is materially prejudiced thereby.
(b) At the time of delivery of any Officer’s Claim Certificate to the Indemnifying Party, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of the Indemnified Party.
(c) If the Indemnifying Party in good faith objects to any claim made by an Indemnified Party in any Officer’s Claim Certificate, then the Indemnifying Party shall deliver a written notice (a “Claim Dispute Notice”) to the Indemnified Party during the 30-day period commencing upon receipt and with counsel selected by the Indemnifying Party of unless (i) such claim or demand seeks an order, injunction or other equitable relief against the Officer’s Claim Certificate. A duplicate copy of such Claim Dispute Notice shall be delivered to the Escrow Agent by Indemnified Party, or on behalf of the Indemnifying Party. The Claim Dispute Notice shall set forth in reasonable detail, if and to the extent that such detail is available based upon the information available to such Indemnifying Party at such time, the principal basis for the dispute of any claim made by (ii) the Indemnified Party in the Officer’s Claim Certificate. If the Indemnifying Party does not deliver shall have reasonably concluded that (x) there is a Claim Dispute Notice to the Indemnified Party prior to the expiration conflict of such 30-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in the Indemnified Party’s favor for purposes of this ARTICLE VIII on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the Escrow Account, then the Indemnified Party may direct the Escrow Agent to deliver cash from the Escrow Account to the Indemnified Party in accordance with this Section 8.9(c).
(d) If the Indemnifying Party delivers a Claim Dispute Notice, then interest between the Indemnified Party and the Indemnifying Party shall attempt in good faith the conduct of the defense of such claim or demand or (y) the Indemnified Party has one or more defenses not available to resolve any such objections raised by the Indemnifying Party. Notwithstanding anything in this Agreement to the contrary, the Indemnified Party shall, at the expense of the Indemnifying Party, cooperate with the Indemnifying Party, and keep the Indemnifying Party fully informed, in the defense of such Claim Dispute Noticeclaim or demand. If the The Indemnified Party and shall have the right to participate in the defense of any claim or demand with counsel employed at its own expense; provided, however, that, in the case of any claim or demand described in clause (i) or (ii) of the second preceding sentence or as to which the Indemnifying Party agree shall not in fact have employed counsel to a resolution assume the defense of such objectionclaim or demand, then a memorandum setting forth the matters conclusively determined reasonable fees and disbursements of such counsel shall be at the expense of the Indemnifying Party. The Indemnifying Party shall have no indemnification obligations with respect to any such claim or demand which shall be settled by the Indemnified Party and without the prior written consent of the Indemnifying Party Party, which consent shall not be prepared and signed by both parties andunreasonably withheld, if cash remains in the Escrow Account, promptly delivered to the Escrow Agent, together with a Joint Direction (as defined in the Escrow Agreement) from Buyer and Seller pursuant to Section 4(b) of the Escrow Agreement directing the Escrow Agent to distribute cash from the Escrow Account in accordance with the terms of such memorandumdelayed or conditioned.
(e) If no such resolution can be reached during the 45-day period following the Indemnified Party’s receipt of a given Claim Dispute Notice, then upon the expiration of such 45-day period, either the Indemnified Party or the Indemnifying Party may bring suit to resolve the objection in accordance with Section 9.1 and Section 9.13.
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Procedures for Claims. (a) If at any time prior to the expiration of the applicable survival period for a representation or warranty in Section 8.1, an Indemnified Party (or Seller or Buyer, as applicable, on behalf thereof) determines in good faith that it has a bona fide claim for A party seeking indemnification pursuant to this ARTICLE VIIISection 15 (an "Indemnified Party") from or against the assertion of any claim, such Indemnified Party or the commencement of any action, suit or proceeding by a third Person in respect of which indemnity may deliver be sought under this Section is (a "Third Person Assertion") shall give prompt notice to the party from whom indemnification is sought (the "Indemnifying Party") and shall provide the Indemnifying Party a certificate signed by such information with respect thereto as the Indemnifying Party may reasonably request, but no failure to give such notice or provide such information shall relieve the Indemnifying Party of any officer of the Indemnified Party liability hereunder (any certificate delivered in accordance with the provisions of this Section 8.9(a), an “Officer’s Claim Certificate”):
(i) stating that an Indemnified Party has a claim for indemnification pursuant to this ARTICLE VIII;
(ii) except to the extent possible, containing a good faith non-binding, preliminary estimate that the Indemnifying Party has suffered actual prejudice by such failure). No Indemnified Party shall settle any Third Person Assertion without the prior written consent of the amount to which such Indemnified Party claims to be entitled to receive as a claim for indemnification pursuant to this ARTICLE VIIIIndemnifying Party, which consent shall not be unreasonably withheld or delayed. The Indemnifying Party shall have the amount of Losses such Indemnified Party claims to have so incurred or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed right, exercisable by the Indemnified Party) the material facts known written notice to the Indemnified Party giving rise within ten (10) Business Days of receipt of notice from the Indemnified Party pursuant hereto of a Third Person Assertion, to such claim. No delay in providing such Officer’s Claim Certificate prior to assume the expiration of the applicable survival period for a representation or warranty in Section 8.1 shall affect an Indemnified Party’s rights hereunder, unless (and then only to the extent that) the Indemnifying Party is materially prejudiced thereby.
(b) At the time of delivery of any Officer’s Claim Certificate to the Indemnifying Party, a duplicate copy defense of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of the Indemnified Party.
(c) Third Person Assertion. If the Indemnifying Party in good faith objects to any claim made by an Indemnified Party in any Officer’s Claim Certificateassumes such defense, then the Indemnifying Party may select counsel, which counsel shall deliver a written notice (a “Claim Dispute Notice”) be reasonably acceptable to the Indemnified Party during the 30-day period commencing upon receipt by the Indemnifying Party of the Officer’s Claim Certificate. A duplicate copy of such Claim Dispute Notice shall be delivered to the Escrow Agent by or on behalf of the Indemnifying Party. The Claim Dispute Notice shall set forth in reasonable detail, if and to the extent that such detail is available based upon the information available to such Indemnifying Party at such time, the principal basis for the dispute of any claim made by the Indemnified Party in the Officer’s Claim Certificate. If the Indemnifying Party does not deliver a Claim Dispute Notice assume the defense of any Third Person Assertion in accordance with the preceding sentences or, having so assumed such defense, unreasonably fails to defend against such Third Person Assertion at any time after the Indemnifying Party shall have assumed the defense of such Third Person Assertion, then upon five (5) days' prior written notice to the Indemnified Party prior to the expiration of such 30-day periodIndemnifying Party, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in the Indemnified Party’s favor for purposes of this ARTICLE VIII on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains in the Escrow Account, then the Indemnified Party may direct assume the Escrow Agent defense of such Third Person Assertion and shall have the right to deliver cash from consent to the Escrow Account to entry of judgment with respect to, or otherwise settle, such Third Person Assertion with the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. In such event, the Indemnified Party in accordance with shall be entitled under this Section 8.9(c).
15, as part of its Damages, to indemnification for the reasonable costs of such defense The Indemnifying Party, if it shall have assumed the defense of any Third Person Assertion, shall have the right to consent to the entry of judgment with respect to, or otherwise settle, such Third Person Assertion with the consent of the Indemnified Party, which consent shall not be unreasonably withheld; provided, however, that the Indemnified Part may withhold its consent if (d1) If any such judgment imposes a continuing non-monetary obligation on the Indemnifying Indemnified Party delivers a Claim Dispute Noticeor any of its Affiliates, then (2) does not include an unconditional release of the Indemnified Party and its Affiliates from all liability in respect of claims that are the subject matter of such Third Person Assertion, or (3) may result in a loss, suspension or other restriction of any license or right to participate as a provider under any Federal Health Care Program, State Health Care Program or CHAMPUS. The Indemnifying Party shall attempt in good faith to resolve any such objections raised by the Indemnifying Party in such Claim Dispute Notice. If and the Indemnified Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Person Assertion and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals as may be requested in connection therewith. The Indemnifying Party agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by the Indemnified Party and the Indemnifying Party shall be prepared and signed by both parties and, if cash remains in the Escrow Account, promptly delivered to the Escrow Agent, together with a Joint Direction (as defined in the Escrow Agreement) from Buyer and Seller pursuant to Section 4(b) of the Escrow Agreement directing the Escrow Agent to distribute cash from the Escrow Account in accordance with the terms of such memorandum.
(e) If no such resolution can be reached during the 45-day period following or the Indemnified Party’s receipt , as the case may be, shall have the right to participate, at its own expense, in the defense or settlement of a given Claim Dispute Notice, then upon any Third Person Assertion which the expiration of such 45-day period, either the Indemnified Party or the Indemnifying Party may bring suit to resolve the objection in accordance with Section 9.1 and Section 9.13other is defending.
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Procedures for Claims. (a) If The Indemnifying Party shall have the right to defend against any claim made by any third party against the indemnified party (“Third Party Claim”) (including to conduct any proceedings or settlement negotiations) with counsel of its own choosing. The Indemnified Party shall have the right to participate in the defense of any Third Party Claim and to employ its own counsel (it being understood that the Indemnifying Party shall control such defense), at any time prior its own expense. Prior to the expiration time the Indemnified Party is notified by the Indemnifying Party as to whether the Indemnifying Party will assume the defense of a Third Party Claim, the Indemnified Party shall take all actions reasonably necessary to timely preserve the collective rights of the applicable survival period for parties with respect to such Third Party Claim, including responding timely to legal process. If the Indemnifying Party shall decline to assume the defense of a representation Third Party Claim (or warranty in Section 8.1, an shall fail to notify the Indemnified Party of its election to defend such Third Party Claim within ten (or Seller or Buyer, as applicable, on behalf thereof10) determines in good faith that it has a bona fide claim for indemnification pursuant to this ARTICLE VIII, such days after the giving by the Indemnified Party may deliver to the Indemnifying Party of a certificate signed by any officer of Valid Third Party Claim Notice with respect to the Third Party Claim), the Indemnified Party (any certificate delivered in accordance with shall defend against the provisions of this Section 8.9(a), an “Officer’s Third Party Claim Certificate”):
(i) stating that an and the Indemnifying Party shall be liable to the Indemnified Party has a claim for indemnification pursuant to this ARTICLE VIII;
(ii) to all reasonable fees and expenses incurred by the extent possible, containing a good faith non-binding, preliminary estimate Indemnified Party in the defense of the amount to which such Indemnified Third Party claims to be entitled to receive as a claim for indemnification pursuant to this ARTICLE VIIIClaim, which shall be including the amount reasonable fees and expenses of Losses such Indemnified Party claims to have so incurred or suffered or could reasonably be expected to incur or suffer; and
(iii) specifying in reasonable detail (based upon the information then possessed counsel employed by the Indemnified Party) the material facts known to the Indemnified Party giving rise to such claim. No delay in providing such Officer’s Claim Certificate prior to the expiration of the applicable survival period for a representation or warranty in Section 8.1 shall affect an Indemnified Party’s rights hereunder, unless (and then only to the extent that) the Indemnifying Party is materially prejudiced thereby.
(b) At the time of delivery of any Officer’s Claim Certificate to the Indemnifying Party, a duplicate copy of such Officer’s Claim Certificate shall be delivered to the Escrow Agent by or on behalf of the Indemnified Party.
(c) If the Indemnifying Party in good faith objects to any claim made by an Indemnified Party in any Officer’s Claim Certificate, then the Indemnifying Party shall deliver a written notice (a “Claim Dispute Notice”) to the Indemnified Party during the 30-day period commencing upon receipt by the Indemnifying Party of the Officer’s Claim Certificate. A duplicate copy of such Claim Dispute Notice shall be delivered to the Escrow Agent by or on behalf of the Indemnifying Party. The Claim Dispute Notice shall set forth in reasonable detail, if and to the extent that the Indemnifying Party is responsible to indemnify for such detail is available based upon Third Party Claim. Regardless of which party assumes the defense of a Third Party Claim, the parties agree to cooperate with one another in connection therewith. Such cooperation shall include providing records and information available that are relevant to such Third Party Claim, and making employees and officers available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder and to act as a witness or respond to legal process. Whether or not the Indemnifying Party at such timeassumes the defense of a Third Party Claim, the principal basis for the dispute of any claim made by 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, not to be unreasonably withheld, conditioned or delayed.
(b) In order for an Indemnified Party to be entitled to any indemnification provided for under this Article X or under Article VII in respect of a claim, the Officer’s Claim Certificate. If Indemnified Party must promptly notify the Indemnifying Party in writing of such claim (the “Claim Notice”) promptly after obtaining actual knowledge of such claim, which notification, to be a valid Claim Notice, with the effect set forth in Sections 10.1 and 10.2 (a “Valid Claim Notice”), in the case of a Third Party Claim, must be accompanied by a copy of the written notice of the third party claimant to the indemnified party asserting the Third Party Claim, and in the case of a claim that does not deliver involve a Claim Dispute Notice to Third Party Claim, must (i) certify that the Indemnified Party prior has in good faith already sustained some (though not necessarily all) Damages with respect to the expiration of such 30-day period, then (i) each claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in the Indemnified Party’s favor for purposes of this ARTICLE VIII on the terms set forth in the Officer’s Claim Certificate and (ii) if cash remains the Claim Notice is asserting a claim for breach of any party’s representations or warranties contained herein, be accompanied by a written description setting out, in reasonable detail, the Escrow Account, then circumstances or conditions constituting the breach and identifying the representation and warranty as to which the breach is claimed. The failure by any Indemnified Party may direct the Escrow Agent to deliver cash from the Escrow Account to the Indemnified Party in accordance with this Section 8.9(c).
(d) If notify the Indemnifying Party delivers promptly (so long as a Valid Claim Dispute Notice, then Notice is given before the Indemnified Party and expiration of the applicable period set forth in Section 10.1 if applicable) shall not relieve the Indemnifying Party shall attempt in good faith from any liability that it may have to resolve any such objections raised by Indemnified Party under Section 10.2, except to the extent that the Indemnifying Party in has been materially prejudiced by such Claim Dispute Notice. If the Indemnified Party and the Indemnifying Party agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by the Indemnified Party and the Indemnifying Party shall be prepared and signed by both parties and, if cash remains in the Escrow Account, promptly delivered to the Escrow Agent, together with a Joint Direction (as defined in the Escrow Agreement) from Buyer and Seller pursuant to Section 4(b) of the Escrow Agreement directing the Escrow Agent to distribute cash from the Escrow Account in accordance with the terms of such memorandumfailure.
(e) If no such resolution can be reached during the 45-day period following the Indemnified Party’s receipt of a given Claim Dispute Notice, then upon the expiration of such 45-day period, either the Indemnified Party or the Indemnifying Party may bring suit to resolve the objection in accordance with Section 9.1 and Section 9.13.
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Samples: Share Purchase Agreement (NorthStar Real Estate Income II, Inc.)
