Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification (the “Indemnified Person”) shall give written notice to the Party from whom such indemnification is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claim. (b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the Indemnifying Party will be entitled to assume the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim. (c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party. (d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim. (e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed.
Appears in 2 contracts
Samples: Separation Agreement, Separation Agreement (Lockheed Martin Corp)
Procedures. If (ai) If any Parent Event of Breach occurs or is alleged and a UAG Indemnified Party shall seek indemnification asserts that the Stockholders have become obligated to a UAG Indemnified Party pursuant to Section 7.02(a)9.1, or if any Spinco Stockholder Third Party Claim is begun, made or instituted as a result of which the Stockholders may become obligated to a UAG Indemnified Party shall seek indemnification hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholder Indemnified Party asserts that UAG has become obligated to a Stockholder Indemnified Party pursuant to Section 7.02(b9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholder Indemnified Party hereunder (for purposes of this Article 2, any UAG Indemnified Party and any Stockholder Indemnified Party is sometimes referred to as an "Indemnified Party" and UAG and the Stockholders are sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholder Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), the Person seeking indemnification (the “such Indemnified Person”) Party shall give written notice to the Indemnifying Party of its or his obligation to provide indemnification hereunder, provided that any failure to so notify the Indemnifying Party shall not relieve them from whom any liability that it or he may have to the Indemnified Party under this Article 9. If such indemnification is sought (the “notice relates to a Third Party Claim, each Indemnifying Party”) promptly (, jointly and severally, agrees to defend, contest or otherwise protect such Indemnified Party against any such Third Party Claim at his or its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of such Indemnified Party's choice and shall in any event within 10 days) after cooperate with and assist the Indemnified Person (orIndemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend, if the Indemnified Person is a corporation, any officer contest or director of the Indemnified Person) becomes aware of the facts giving rise to otherwise protect against such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Third Party Claim, state such Indemnified Party shall have the amount of Damages right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, attorneys' fees, disbursements and amounts paid (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification thereforParty has become obligated to pay) as the result of such Third Party Claim. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid Failure by the Indemnifying Party to be greater than they otherwise would notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice given to the Indemnifying Party shall be accompanied deemed a waiver by a copy the Indemnifying Party of any papers theretofore served on its or delivered their right to the Indemnified Person in connection with defend such Third Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), . If the Indemnifying Party will be entitled to assume assumes the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a particular Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person not, in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising fromor enter into any settlement, any Third except with the written consent of such Indemnified Party. In addition, the Indemnifying Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber enter into any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without except with the express written consent of such Indemnified Party) which does not include as an unconditional term thereof the Indemnifying Party.
(d) If an Indemnifying giving by the claimant or the plaintiff to such Indemnified Party makes any payment on an Indemnified a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be subrogatedentitled to control (but shall be entitled to participate at their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense financial or otherwise) or prospects of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayedParty.
Appears in 2 contracts
Samples: Stock Purchase Agreement (United Auto Group Inc), Stock Purchase Agreement (United Auto Group Inc)
Procedures. Claims for indemnification under this Agreement shall be asserted and resolved as follows:
(a) If any Parent Person entitled to seek indemnification under Section 10.2 or Section 10.3 (an “Indemnified Party”) receives notice of the assertion or commencement of any claim asserted against an Indemnified Party by a Third Party (“Third Party Claim”) in respect of any matter that is subject to indemnification under Section 10.2 or Section 10.3 the Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification promptly (the “Indemnified Person”i) shall give written notice to notify the Party from against whom such indemnification is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified PersonThird Party Claim and (ii) becomes aware of transmit to the facts giving rise to such claim for indemnification Indemnifying Party a written notice (an “Indemnified ClaimClaim Notice”), which notice shall specify ) describing in reasonable detail the factual basis nature of the Indemnified Third Party Claim, state a copy of all papers served with respect to such claim (if any), the amount of Damages (or if not known, a good faith Indemnified Party’s best estimate of the amount of Damages) Damages attributable to the Third Party Claim, if known, and the method basis of computation thereofthe Indemnified Party’s request for indemnification under this Agreement. Failure to timely provide such Claim Notice shall not affect the right of the Indemnified Party’s indemnification hereunder, contain a reference except to the provision extent (and then only to the extent) the Indemnifying Party is prejudiced by such failure.
(b) The Indemnifying Party shall defend a Third Party Claim with counsel selected by the Indemnifying Party (who shall be reasonably satisfactory to the Indemnified Party), by all appropriate proceedings, to a final conclusion or settlement at the discretion of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice the Indemnifying Party in accordance with this Section 7.03(a10.5(b). The Indemnifying Party shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided that the prior written consent of the Indemnified Party shall be required with respect to any such compromise or settlement if (A) the Indemnified Party or any delay of its Affiliates would be required to pay any monetary damages as a result of such compromise or settlement, (B) such compromise or settlement requires any admission of guilt or wrongdoing on the part of the Indemnified Party or contains any sanction, restriction or relief that would adversely affect the conduct of any business of the Indemnified Party or its Affiliates in providing any material respect or (C) such noticecompromise or settlement does not fully and unconditionally release the Indemnified Party with respect to such Third Party Claim. If requested by the Indemnifying Party, shall the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to reasonably cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim which the Indemnifying Party elects to contest, including the making of any related counterclaim against the Person asserting the Third Party Claim or any cross complaint against any Person. The Indemnified Party may participate in, but not constitute a waiver control, any defense or settlement of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid Third Party Claim controlled by the Indemnifying Party pursuant to be greater than they otherwise would this Section 10.5(b), and the Indemnified Party shall bear its own costs and expenses with respect to such participation; provided that notwithstanding the foregoing, the Indemnifying Party shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnified Party if (x) the Indemnified Party’s outside counsel shall have been reasonably concluded and advised in writing (with a copy to the Indemnifying Party) that there are defenses available to such Indemnified Party that are different from or otherwise results in prejudice additional to those available to the Indemnifying Party or (iiy) such notice is not delivered the Indemnified Party’s outside counsel shall have advised in writing (with a copy to the Indemnifying Party) that there is a conflict of interest that would make it inappropriate under applicable standards of professional conduct to have common counsel for the Indemnifying Party and the Indemnified Party.
(c) Any claim by an Indemnified Party on account of Damages that does not result from a Third Party Claim (a “Direct Claim”) must be asserted by giving the Indemnifying Party written notice thereof prior to the expiration of the applicable survival period set forth in Section 7.0110.1. Such notice by the Indemnified Party shall describe the Direct Claim in reasonable detail, include copies of all available material written evidence thereof and indicate the estimated amount, if reasonably practicable, of Damages that have been or may be sustained by the Indemnified Party. The Indemnifying Party will have a period of twenty (20) Business Days within which to respond in writing to such Direct Claim. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with does not so respond within such Third Party Claim.
twenty (b20) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a)Business Day period, the Indemnifying Party will be entitled deemed to assume have rejected such claim, in which event the defense Indemnified Party will be free to pursue such remedies as may be available to the Indemnified Party on the terms and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying PartyAgreement.
(d) If an Indemnifying Party makes any Any indemnification payment on an Indemnified Claim, the Indemnifying Party made pursuant to this Agreement shall be subrogated, net of any insurance proceeds realized by and paid to the extent Indemnified Party in respect of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (Sunoco Logistics Partners L.P.), Membership Interest Purchase Agreement (Enbridge Energy Partners Lp)
Procedures. Claims for indemnification under this Agreement shall be asserted and resolved as follows:
(a) If any Parent Person who or which is entitled to seek indemnification under Section 10.2 (an “Indemnified Party”) receives notice of the assertion or commencement of any claim asserted against an Indemnified Party by a third party (“Third Party Claim”) in respect of any matter that is subject to indemnification under Section 10.2, the Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), promptly (i) notify the Person seeking indemnification (the “Indemnified Person”) shall give written notice to the Party from party against whom such indemnification is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified PersonThird Party Claim and (ii) becomes aware of transmit to the facts giving rise to such claim for indemnification Indemnifying Party a written notice (an “Indemnified ClaimClaim Notice”), which notice shall specify ) describing in reasonable detail the factual basis nature of the Indemnified Third Party Claim, state a copy of all papers served with respect to such claim (if any), the amount of Damages (or if not known, a good faith Indemnified Party’s best estimate of the amount of Damages) Losses attributable to the Third Party Claim and the method basis of computation thereof, contain a reference the Indemnified Party’s request for indemnification under this Agreement. Failure to the provision of this Agreement in respect of which timely provide such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, Notice shall not constitute a waiver affect the right of that Personthe Indemnified Party’s claims to indemnification pursuant to Section 7.02hereunder, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been is prejudiced by such delay or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claimomission.
(b) In The Indemnifying Party shall have the event of receipt of notice of a right to defend the Indemnified Party against such Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), Claim. If the Indemnifying Party will be entitled notifies the Indemnified Party that the Indemnifying Party elects to assume the defense and control of such the Third Party Claim subject (such election to be without prejudice to the provisions right of the Indemnified Party to dispute whether such claim is an identifiable Loss under this Section 7.03(bArticle X). After written notice by , then the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether Claim with counsel selected by the Indemnifying Party or (who shall be reasonably satisfactory to the Indemnified Person is defending and controlling any such Third Party ClaimParty), it shall select counselby all appropriate proceedings, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense to a final conclusion or settlement thereof, and shall diligently and promptly pursue at the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each discretion of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection accordance with any Third Party Claim.
(c) this Section 10.3(b). The Indemnifying Party shall be authorized to consent to a have full control of such defense and proceedings, including any compromise or settlement of, or thereof; provided that the entry of any judgment arising from, any Third Indemnifying Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber enter into any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person agreement without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party (which consent shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed); provided further, that such consent shall not be required if (i) the settlement agreement contains a complete and unconditional general release by the third party asserting the claim to all Indemnified Parties affected by the claim and (ii) the settlement agreement does not contain any sanction or restriction upon the conduct of any business by the Indemnified Party or its Affiliates. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim which the Indemnifying Party elects to contest, including the making of any related counterclaim against the Person asserting the Third Party Claim or any cross complaint against any Person. The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.3(b), and the Indemnified Party shall bear its own costs and expenses with respect to such participation.
(c) If the Indemnifying Party does not notify the Indemnified Party that the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 10.3(b), then the Indemnified Party shall have the right to defend, and be reimbursed for its reasonable cost and expense (but only if the Indemnified Party is actually entitled to indemnification hereunder) in regard to the Third Party Claim with counsel selected by the Indemnified Party (who shall be reasonably satisfactory to the Indemnifying Party), by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party. In such circumstances, the Indemnified Party shall defend any such Third Party Claim in good faith and have full control of such defense and proceedings; provided, however, that the Indemnified Party may not enter into any compromise or settlement of such Third Party Claim if indemnification is to be sought hereunder, without the Indemnifying Party’s consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.3(c), and the Indemnifying Party shall bear its own costs and expenses with respect to such participation.
(d) Any claim by an Indemnified Party on account of Losses that does not result from a Third Party Claim (a “Direct Claim”) will be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 30 days after the Indemnified Party becomes aware of such Direct Claim. Such notice by the Indemnified Party will describe the Direct Claim in reasonable detail, will include copies of all available material written evidence thereof and will indicate the estimated amount, if reasonably practicable, of Damages that has been or may be sustained by the Indemnified Party. The Indemnifying Party will have a period of five Business Days within which to respond in writing to such Direct Claim. If the Indemnifying Party does not so respond within such five Business Day period, the Indemnifying Party will be deemed to have rejected such claim, in which event the Indemnified Party will be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Agreement.
(e) Any indemnification payment made pursuant to this Agreement shall be net of any insurance proceeds realized by and paid to the Indemnified Party in respect of such claim, and the amount of any Loss shall take into account any net Tax benefits attributable to the circumstance or event giving rise to such Loss.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Atlas Pipeline Partners Lp), Stock Purchase Agreement (Atlas America Inc)
Procedures. At least thirty (a30) If days prior to the effective date of any Parent Indemnified Transfer, Tenant shall give Landlord in writing the details of the proposed Transfer, including, but not limited to: (i) the name, business, and financial condition of the prospective transferee, (ii) a true and complete copy of the proposed instrument containing all of the terms and conditions of such Transfer, (iii) a written agreement of the assignee, subtenant or licensee agreeing with Landlord to perform and observe all of the terms, covenants, and conditions of this Lease undertaken by such transferee and such other matters as are contained in Landlord’s standard form of consent to a Transfer, and (iv) any other information Landlord reasonably deems relevant. Tenant shall pay to Landlord, as Additional Rent, Landlord’s actual reasonable attorneys’ fees in reviewing any Transfer up to a maximum of $3,000 per Transfer request. Tenant may make a Related Party shall seek indemnification pursuant Transfer (as defined below) without the consent of Landlord provided that Tenant gives Landlord at least ten (10) days’ prior notice thereof together with evidence reasonably satisfactory to Section 7.02(a)Landlord that the proposed Transfer is a Related Party Transfer and such Related Party Transfer is subject to all of the other terms and conditions for this Article. A “Related Party Transfer” transactions with an entity (i) into or with which Tenant is merged or consolidated, (ii) to which substantially all of Tenant’s assets are transferred as a going concern, or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification (the “Indemnified Person”iii) shall give written notice to the Party from whom such indemnification which controls or is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person controlled by Tenant or is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance under common control with this Section 7.03(a), or any delay in providing such noticeTenant, shall not constitute be deemed to be a waiver Transfer within the meaning of this Section, provided that Person’s claims in any of such events (1) Landlord receives prior written notice of any such transactions, (2) the assignee or subtenant agrees directly with Landlord, by written instrument in form satisfactory to indemnification pursuant Landlord, to Section 7.02be bound by all the obligations of Tenant hereunder including, except to without limitation, the extent that covenant against further assignment and subletting, (i3) in no event shall Tenant be released from its obligations under this Lease, (4) any such failure transfer or delay transaction is for a legitimate, regular business purpose of Tenant other than a transfer of Tenant’s interest in giving notice causes this Lease, and (5) the amounts paid involvement by Tenant or its assets in any transaction, or series of transactions (by way of merger, sale, acquisition, financing, refinancing, transfer, leveraged buy-out or otherwise) whether or not a formal assignment or hypothecation of this Lease or Tenant’s assets occurs, will not result in a reduction of the Net Worth of Tenant (as defined below), from the Net Worth of Tenant as it is represented to be paid Landlord at the time of the execution by the Indemnifying Party to be greater than they otherwise would have been Landlord of this Lease, or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party as it exists immediately prior to the expiration said transaction or transactions constituting such reduction, at whichever time said Net Worth of the applicable survival period set forth in Section 7.01Tenant was or is greater. If the Indemnified Claim arises from the assertion “NetWorth” of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the Indemnifying Party will be entitled to assume the defense and control of such Third Party Claim subject to the provisions Tenant for purposes of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry tangible net worth of Tenant (excluding any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (Aguarantors) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Partyestablished under generally accepted accounting principles consistently applied.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed.
Appears in 2 contracts
Samples: Lease Agreement (Xenetic Biosciences, Inc.), Lease Agreement (Xenetic Biosciences, Inc.)
Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification (the “Indemnified Person”) shall give written notice to the Party from whom such indemnification is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) The text of any Proposed Presentation will be presented in writing in the English language to the other Party for review and comment reasonably prior to the time the presentation or publication is proposed for submission to any Third Party. Promptly after its receipt of such failure presentation or delay publication and reasonably prior to the time the presentation or publication is proposed for submission to any Third Party, the other Party will provide notice whether it has any comments or objection to the proposed presentation or publication. The submitting Party will consider in giving notice causes the amounts paid or to be paid good faith all comments by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or reviewing Party.
(ii) such notice If a reasonable objection is not delivered to raised, including, for example, that the Indemnifying Party prior to the expiration contents of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claimProposed Presentation contain patentable subject matter for which patent protection should be sought, or that the commencement Proposed Presentation discloses Confidential Information of any Proceedingthe other Party, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to then submission of the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the Indemnifying Party Proposed Presentation will be entitled to assume the defense delayed, unless and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any submission of the assets of any Indemnified Person presentation or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, publication is given (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned withheld or delayed) or except as otherwise provided in subsection (iii) below or Section 11.6(b) above. Each Party will be acknowledged on any Proposed Presentation by the other Party in accordance with generally accepted rules of authorship.
(iii) Prior to the date that POZEN transfers to GSK the NDA for a particular Collaboration Product, POZEN will retain final decision making authority under the terms of Section 11.6(c) with regard to Proposed Presentations relating to such Collaboration Product to be made by GSK pursuant to this Section 11.6(c) and GSK will retain final decision making authority under the terms of Section 11.6(c) with regard to Proposed Presentations relating to such Collaboration Product to be made by POZEN pursuant to this Section 11.6(c). From and after the date that POZEN has transferred to GSK the NDA for a particular Collaboration Product and for so long as GSK holds the NDA for such Collaboration Product, GSK will retain final decision making authority under the terms of Section 11.6(c) with regard to Proposed Presentations relating to such Collaboration Product proposed to be made by either Party. Subject to the terms of Section 11.6(c), GSK may pursue a public relations campaign as part of its Commercialization efforts of the Lead Product prior to the transfer of the NDA for such Lead Product with the prior consent of POZEN and, thereafter following such transfer, without the prior consent of POZEN.
Appears in 2 contracts
Samples: Product Development and Commercialization Agreement (Pozen Inc /Nc), Product Development and Commercialization Agreement (Pozen Inc /Nc)
Procedures. The obligations of the Parties provided for under Sections 8.1 and 8.2 in respect of any Third Party Claims shall be performed in accordance with the following procedures:
(a) If any Parent Indemnified Party shall seek Each Person entitled to indemnification pursuant to under Section 7.02(a)8.1 or 8.2 hereof (each, or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification (the an “Indemnified PersonParty”) shall give written notice to the Party from whom such it is seeking indemnification is sought hereunder (the “Indemnifying Party”) written notice as promptly as reasonably practicable after the written assertion of any Third-Party Claim or commencement of any action, suit or proceeding in respect thereof (and in any event within 10 daysthirty (30) days after receipt of such written authorization); provided, however, that, if an Indemnified Party fails to give the Indemnifying Party written notice as provided herein, the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise Party’s rights to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of under this Agreement Article VIII in respect of which such Indemnified Third-Party Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, be impaired except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been incurs an out of pocket expense or otherwise results in prejudice to the Indemnifying Party or is prejudiced by such failure (ii) such notice is not delivered to the Indemnifying Party prior to the expiration whether as a result of the applicable survival period set forth in forfeiture of substantive defenses or otherwise).
(b) Promptly after receipt of written notice of a Third-Party Claim as contemplated by Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”8.3(a), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the Indemnifying Party will be entitled to assume the defense defense, control and control settlement of such Third Third-Party Claim subject to the provisions Claim; provided, however, that (i) if, after receipt of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third such Third-Party Claim, the Indemnifying Party fails within a reasonable time to assume the defense thereof, the Indemnified Party shall have the right to undertake the defense of such Third-Party Claim on behalf of and for the account and risk of the Indemnifying Party (including the reasonable fees and expenses of counsel for the Indemnified Party, as applicable), subject to the right of the Indemnifying Party (upon notifying Indemnified Party of its election to do so) to assume the defense of such Third-Party Claim at any time prior to the judgment or other final determination thereof (in which event the Indemnified Party shall have the right to participate and be informed with respect to such defense), and (ii) if the Indemnified Party so elects, it shall be entitled to employ separate counsel and to participate in, but not control, the defense of such Third-Party Claim (and the Indemnifying Party shall cooperate with the Indemnified Party so as to allow it to participate in, but not control, the defense thereof), but the fees and expenses of counsel so employed shall (except as otherwise contemplated by clause (i) above) be borne solely by the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not (A) settle or compromise any Third-Party Claim, or consent to the entry of any judgment relating thereto, that does not include as an unconditional term thereof the grant by the claimant or plaintiff to each Indemnified Party of a release from any and all liability in respect thereof or (B) settle or compromise any Third-Party Claim, or consent to the entry of any judgment relating thereto, that would materially and adversely affect the Indemnified Party other than as a result of money damages or other money payments to be fully paid by the Indemnifying Party, without the prior written consent of the Indemnified Party, which shall not be liable to such Indemnified Person for any legal fees unreasonably withheld or expenses subsequently incurred by such Indemnified Person in connection therewithdelayed. Notwithstanding anything in this Section 7.03 In addition, notwithstanding the foregoing, to the contrary, until such time as extent that the Indemnifying Indemnified Party assumes shall be permitted to assume the defense and control of a Third Party Claim as provided in under the provisions of this Section 7.038.3(b), the Indemnified Person Party shall have the right to defend not settle or compromise such Third Third-Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of ParentIndemnifying Party, such which consent shall not to be unreasonably withheld, conditioned withheld or delayed.
Appears in 2 contracts
Samples: Purchase Agreement (Palmsource Inc), Purchase Agreement (Palmone Inc)
Procedures. (ai) If any Parent Indemnified Party shall seek indemnification pursuant A Person that may be entitled to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification be indemnified under this Agreement (the “Indemnified PersonParty”) shall give written notice to promptly notify the Party from whom or Parties liable for such indemnification is sought (the “Indemnifying Party”) promptly (and in writing of any event within 10 days) after pending or threatened claim or demand that the Indemnified Person (or, if the Indemnified Person is a corporation, any officer Party has determined has given or director of the Indemnified Person) becomes aware of the facts giving would reasonably be expected to give rise to such claim for right of indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of including a pending or threatened claim or demand asserted by a third party against the Indemnified ClaimParty, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (claim being a “Third Party Claim”), any describing in reasonable detail (taking into account the information then available to the Indemnified Party) the facts and circumstances with respect to the subject matter of such claim or demand; provided, that the failure to provide such notice to shall not release the Indemnifying Party shall be accompanied from any of its obligations under Section 4.12(a) and this Section 9.2 except to the extent that the Indemnifying Party is materially prejudiced by such failure (as determined by a copy court of competent jurisdiction), it being agreed that notices for claims in respect of a breach of a covenant or agreement must be delivered prior to the expiration of any papers theretofore served on applicable survival period specified in Section 9.1 for such covenant or delivered to the Indemnified Person in connection with such Third Party Claimagreement.
(bii) In the event of Upon receipt of a notice of a Third Party Claim for indemnity from an Indemnified Person Party pursuant to Section 7.03(a)4.12(a) and this Section 9.2, the Indemnifying Party will be entitled, by notice to the Indemnified Party delivered within twenty (20) Business Days of the receipt of notice of such Third Party Claim, to assume the defense and control of such Third Party Claim (at the expense of such Indemnifying Party); provided, that the Indemnifying Party shall not be entitled to assume the defense and control of such Third Party Claim, if (i) the Third Party Claim subject relates to or arises in connection with any criminal Action, (ii) the provisions Third Party Claim seeks an injunction or equitable relief against the Indemnified Party or any of this Section 7.03(b). After written notice by its Affiliates, or (iii) defense of the Third Party Claim would reasonably be expected to harm the Indemnified Party’s reputation or business relationships,; provided, further, that if the Indemnifying Party to assumes the defense and control of such Third Party Claim, the Indemnifying Party shall allow the Indemnified Person Party a reasonable opportunity to participate in the defense of such Third Party Claim with its election own counsel and at its own expense except that the Indemnifying Party shall pay the reasonable and documented fees and expenses of such external separate counsel if representation of both the Indemnifying Party and the Indemnified Party by the same counsel would create a conflict of interest. If the Indemnifying Party does not assume the defense and control of any Third Party Claim pursuant to this Section 9.2(c)(ii), the Indemnified Party shall be entitled to assume and control such defense and the Indemnifying Party shall pay the reasonable and documented fees and expenses of external counsel retained by the Indemnified Party, but the Indemnifying Party may nonetheless participate in the defense of such Third Party Claim with its own counsel and at its own expense. Purchaser or Sellers, as the case may be, shall, and shall cause each of their respective Affiliates and Representatives to, reasonably cooperate with the Indemnifying Party in the defense of any Third Party Claim, including by furnishing books and records, personnel and witnesses, as appropriate for any defense of such Third Party Claim. If the Indemnifying Party has assumed the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement or compromise of, or the entry of any judgment arising from, any Third Party ClaimsClaim, in its sole discretion and without the consent of any Indemnified Party; provided, that such settlement or judgment does not involve any injunctive or other equitable relief or finding or admission of any violation of Law or admission of any wrongdoing by any Indemnified Party or any of its Affiliates and expressly unconditionally releases the Indemnified Person shall Party and its Affiliates from all Liabilities with respect to such Third Party Claim. No Indemnified Party will consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber or enter into any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as compromise with respect to a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express prior written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Ohio Power Co), Stock Purchase Agreement (Algonquin Power & Utilities Corp.)
Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person The party seeking indemnification under Section 9.02 (the “Indemnified Person”"INDEMNIFIED PARTY") shall agrees to give prompt written notice notice, but no later than 5 days after receipt thereof, to the Party from party against whom such indemnification indemnity is sought (the “Indemnifying Party”"INDEMNIFYING PARTY") promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceedingsuit, brought by a Person that is not a Parent Company action or a Spinco Company proceeding (a “Third Party Claim”), any "CLAIM") in respect of which indemnity may be sought under such notice to Section and will provide the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to such information with respect thereto that the Indemnified Person in connection with such Third Indemnifying Party Claimmay reasonably request.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the The Indemnifying Party will shall be entitled to assume participate in the defense and control of such Third Party of, investigation of, or corrective action required to be undertaken in response to, any Claim subject to the provisions of this Section 7.03(b). After written notice asserted by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claimthird party, the Indemnifying Party shall not be liable to such Indemnified Person for including any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party ClaimGovernmental Authority ("THIRD PARTY CLAIM") and, subject to the limitations set forth in this Section 7.03or Section 9.04, shall be entitled to control and appoint lead counsel for such defense, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall each case at all times act as if all Damages relating its expense subject to the Third Party Claim were for its own account deductible and shall act maximum liability described in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party ClaimSection 9.02.
(c) The If the Indemnifying Party shall be authorized to consent to a settlement of, or assume the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any control of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect defense of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person in accordance with respect to such claim.
(e) Without limiting the provisions of this Section 7.03or Section 9.04, it is acknowledged and agreed that Parent (i) the Indemnifying Party shall defend and control obtain the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance prior written consent of the foregoing, the Parties acknowledge and agree that the provisions Indemnified Party (which shall not be unreasonably withheld) before entering into any settlement of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the such Third Party Claim described in Schedule A-17 (if the “MSA Matter”), settlement does not release the Parties acknowledge Indemnified Party from all liabilities and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments obligations with respect to such Third Party Claim or if the settlement imposes injunctive or other equitable relief against the Indemnified Party and all Proceedings relating thereto, including (ii) the defense of claims in respect thereof by Mission Support Alliance, LLC, Indemnified Party shall consult with Parent regarding any material developments and decisions be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the MSA Matter Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim (including any counterclaims filed by Seller) and shall consider provide access to properties and individuals as reasonably requested and furnish or cause to be furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in good faith the views of Parent in respect connection therewith. This cooperation shall be provided without cost or expense of the MSA Matter. Neither Spinco nor any Spinco other party other than reimbursement of out-of-pocket travel or similar expenses subject to the provisions of Section 9.02.
(e) Each Indemnified Party shall consent use reasonable efforts to collect any amounts available under insurance coverage, or agree from any other Person alleged to be responsible, for any settlement Damages payable under Section 9.02. In addition, each party agrees that it will not, and agrees to use its best efforts to ensure that its Affiliates do not, voluntarily or entry by discretionary action, accelerate the timing, or increase the cost, of judgment with respect to the MSA Matter (including through any approval of or consent to any action obligations of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayedother party under this Article 9.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Megapro Tools Inc), Stock Purchase Agreement (Us Industries Inc /De)
Procedures. (a) If Promptly after the discovery by any Parent Indemnified Party of any Loss or Losses, claim or breach, including any third party claim, that would reasonably be expected to give rise to a claim for indemnification hereunder, the Indemnified Party shall seek indemnification pursuant deliver to Section 7.02(a)the Securityholders’ Representative, or if any Spinco to Parent, as the case may be, a certificate (a “Claim Certificate”) that:
(i) states that the Indemnified Party shall seek indemnification pursuant to Section 7.02(b)has paid or properly accrued Losses, the Person seeking indemnification (the “Indemnified Person”) shall give written notice to the Party from whom such indemnification is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (oror reasonably anticipates that it may or will incur liability for Losses, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims Party may be entitled to indemnification pursuant to Section 7.02this Agreement; and
(ii) specifies in reasonable detail, to the extent practicable and available, each individual item of Loss included in the amount so stated, the basis for any anticipated liability and the nature of the misrepresentation, default, breach of warranty or breach of covenant or claim to which each such item is related and, to the extent computable, the computation of the amount to which such Indemnified Party claims to be entitled hereunder; provided that no delay on the part of any Indemnified Party in notifying the Securityholders’ Representative, or Parent, as the case may be, shall relieve the Indemnifying Parties of any liability or obligations hereunder except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would Parties have been or otherwise results in prejudice prejudiced thereby, and then only to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claimextent.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), If the Indemnifying Party will be entitled to assume the defense and control of such Third Party Claim subject objects to the provisions indemnification of this Section 7.03(b). After written notice by the Indemnifying an Indemnified Party to the Indemnified Person in respect of its election to assume the defense and control of a Third Party Claimany claim or claims specified in any Claim Certificate, the Indemnifying Party shall not be liable deliver a written notice to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 effect to the contrary, until such time as Indemnified Party within thirty (30) days after receipt by the Indemnifying Party assumes of such Claim Certificate. Thereafter, the defense Indemnifying Party and control the Indemnified Party shall attempt in good faith to agree upon the rights of the respective parties for a Third period of not less than sixty (60) days after receipt by the Indemnified Party Claim as provided in this Section 7.03of such written objection with respect to each of such claims to which the Indemnifying Party has objected. If the Indemnified Party and the Indemnifying Party agree with respect to any of such claims, the Indemnified Person shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether and the Indemnifying Party or shall promptly prepare and sign a memorandum setting forth such agreement. Should the Indemnified Person is defending Party and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with fail to agree as to any Third Party Claimparticular item or items or amount or amounts within such sixty (60) day period, then either party shall be entitled to pursue its available remedies for resolving its claim for indemnification.
(c) Within thirty (30) days after delivery of a Claim Certificate, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of a third party claim with counsel reasonably satisfactory to the Indemnified Party; provided that (i) the Indemnifying Party may only assume control of such defense if the ad damnum is less than or equal to the amount of Losses for which the Indemnifying Party is liable under this Article X and (ii) the Indemnifying Party may not assume control of the defense of a third party claim involving criminal liability or in which equitable relief is sought against the Indemnified Party. If the Indemnifying Party does not, or is not permitted under the terms hereof to, so assume control of the defense of a third party claim, the Indemnified 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 claim 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 claim (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 claim. The fees and expenses of counsel to the Indemnified Party with respect to a third party claim shall be considered Losses for purposes of this Agreement if (i) the Indemnified Party controls the defense of such third party claim pursuant to the terms of this Section 10.5(c) or (ii) the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such third party claim. The Indemnifying Party shall be authorized not agree to consent to a any settlement of, or the entry of any judgment arising from, any Third Party Claims, and third party claim without the prior written consent of the Indemnified Person Party, which shall not be unreasonably withheld, conditioned or delayed; provided that the consent of the Indemnified Party shall not be required if the Indemnifying 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 Indemnified Party from further liability and has no other adverse effect on the Indemnified Party. The Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person third party claim without the express prior written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party which shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed.
(d) Notwithstanding anything herein to the contrary, the Securityholders’ Representative shall have the right to control any Tax audit, initiate any claim for refund, and contest, resolve and defend against any assessment, notice of deficiency, or other adjustment or proposed adjustment relating to any and all Taxes for any taxable period ending on or before the Closing Date with respect to the Company and any Subsidiary; provided, however, that the Stockholders’ Representative shall consult with Parent prior to the settlement of any such proceedings that could reasonably be expected to adversely affect Parent, the Company or any Subsidiary in any taxable period ending after the Closing Date, which consent shall not be unreasonably withheld, conditioned or delayed. Parent shall have the right, at its own expense, to control any other Tax audit, initiate any other claim for refund, and contest, resolve and defend against any other assessment, notice of deficiency, or other adjustment or proposed adjustment relating to Taxes with respect to the Company and any Subsidiary; provided that, with respect to any item the adjustment of which may cause the Support Agreement Securityholders to become obligated to make any payment pursuant to Section 10.2 hereof, Parent shall consult with the Securityholders’ Representative with respect to the resolution of any issue that would affect the Securityholders, and not settle any such issue, or file any amended Tax Return relating to such issue, without the consent of the Securityholders’ Representative, which consent shall not be unreasonably withheld, conditioned or delayed.
(e) Claims for Losses specified in any Claim Certificate to which the Indemnifying Party has not objected in writing within thirty (30) days of receipt of such Claim Certificate, claims for Losses covered by a memorandum of agreement of the nature described in this Section 10.5(e) and claims for Losses the validity and amount of which have been the subject of resolution by arbitration or of a final non-appealable judicial determination are hereinafter referred to, collectively, as “Agreed Claims.” The Indemnified Party shall be entitled to payment for any Agreed Claim within ten (10) Business Days of the determination of the amount of any such Agreed Claims.
(f) Any indemnification payments made pursuant to this Article X shall constitute a purchase price adjustment for Tax purposes.
(g) For purposes of this Section 10.5, all notices to be delivered to, or any actions to be taken by, a Support Agreement Securityholder, whether as an Indemnified Party or as an Indemnifying Party, shall be satisfied by delivering notice to, and only to, and any such action shall be taken by, and only by, the Securityholders’ Representative.
Appears in 2 contracts
Samples: Support Agreement (National Patent Development Corp), Merger Agreement (National Patent Development Corp)
Procedures. If (ai) If any Parent Event of Breach occurs or is alleged and a UAG Indemnified Party shall seek indemnification asserts that the Stockholders have become obligated to a UAG Indemnified Party pursuant to Section 7.02(a)9.1, or if any Spinco Stockholders Third Party Claim is begun, made or instituted as a result of which the Stockholders or the Companies may become obligated to a UAG Indemnified Party hereunder, or (ii) a UAG Event of Breach occurs or is alleged and a Stockholders Indemnified Party asserts that UAG has become obligated to a Stockholders Indemnified Party pursuant to Section 9.2, or if any UAG Third Party Claim is begun, made or instituted as a result of which UAG may become obligated to a Stockholders Indemnified Party hereunder (for purposes of this Article 9, any UAG Indemnified Party and any Stockholders Indemnified Party is sometimes referred to as an "Indemnified Party" and each party having an indemnity obligation under this Article 9 is sometimes referred to as an "Indemnifying Party," and any UAG Third Party Claim and any Stockholders Third Party Claim is sometimes referred to as a "Third Party Claim," in each case as the context so requires), such Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification (the “Indemnified Person”) shall give reasonably prompt written notice to the Indemnifying Party from whom such indemnification is sought (stating the “basis of the Indemnifying Party”) promptly (and in any event within 10 days) after 's obligation to provide indemnification to the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify Party under this Article 9 and setting forth in reasonable detail the factual facts, to the extent then available, concerning the Event of Breach, UAG Event of Breach or Third Party Claim, as the case may be, and the basis of upon which the Indemnified Claim, state the amount of Damages (or if not knownParty is claiming indemnification. Subject to Sections 9.1(b)(i) and 9.2(b)(i), a good faith estimate failure or delay by an Indemnified Party to give a reasonably prompt notice of the amount of Damages) and the method of computation thereof, contain a reference any claim for indemnification shall not release an Indemnifying Party's obligations with respect to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02claim, except to the extent that (i) any the Indemnifying Party can demonstrate actual loss as a result of such failure or delay delay. If such notice relates to a Third Party Claim, each Indemnifying Party, jointly and severally, agrees to defend such Indemnified Party against any such Third Party Claim at its sole cost and expense. Such Indemnified Party shall have the right, but not the obligation, to participate at its own expense in giving notice causes the defense thereof by counsel of such Indemnified Party's choice and shall in any event cooperate with and assist the Indemnifying Party to the extent reasonably possible. If the Indemnifying Party fails timely to defend against such Third Party Claim, such Indemnified Party shall have the right to do so, including, without limitation, the right to make any compromise or settlement thereof, and such Indemnified Party shall be entitled to recover the entire Cost thereof from the Indemnifying Party, including, without limitation, reasonable attorneys' fees, disbursements and amounts paid (or of which such Indemnified Party has become obligated to be paid pay) as the result of such Third Party Claim. Failure by the Indemnifying Party to be greater than they otherwise would notify such Indemnified Party of its or their election to defend any such Third Party Claim within fifteen (15) days after notice thereof shall have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice given to the Indemnifying Party shall be accompanied deemed a waiver by a copy the Indemnifying Party of any papers theretofore served on its or delivered their right to the Indemnified Person in connection with defend such Third Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), . If the Indemnifying Party will be entitled to assume assumes the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a particular Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person not, in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising fromor enter into any settlement, any Third except with the written consent of such Indemnified Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement which shall not encumber be unreasonably withheld. In addition, the Indemnifying Party shall not enter into any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without except with the express written consent of such Indemnified Party, which consent shall not be unreasonably withheld, that does not include as an unconditional term thereof the Indemnifying Party.
(d) If an Indemnifying giving by the claimant or the plaintiff to such Indemnified Party makes any payment on an Indemnified a full release from all liability in respect of such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be subrogatedentitled to control (but shall be entitled to participate at its or their own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any Third Party Claim to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense financial or otherwise) or prospects of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayedParty.
Appears in 2 contracts
Samples: Merger Agreement (United Auto Group Inc), Stock Purchase Agreement (United Auto Group Inc)
Procedures. (a) If any Parent In order for a Buyer Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Seller Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification (the “Indemnified PersonParty”) to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a Loss or a claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall give deliver written notice thereof to the Party from party against whom such indemnification indemnity is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) after the receipt by such Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director Party of written notice of the Indemnified Person) becomes aware of Third Party Claim, describing in reasonable detail the facts giving rise to such any claim for indemnification (an “Indemnified Claim”)hereunder, which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount or method of Damages (or if not known, a good faith estimate computation of the amount of Damagessuch claim (if known) and such other information with respect thereto as the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification thereforIndemnifying Party may reasonably request. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, however, shall not constitute a waiver release the Indemnifying Party from any of that Person’s claims to indemnification pursuant to Section 7.02, its obligations under this Article VIII except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) is prejudiced by such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claimfailure.
(b) In The Indemnifying Party shall have the event right to participate (at the Indemnifying Party’s expense) in or, at its option and upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of a the commencement of such Third Party Claim from an Claim, assume the defense thereof (including any appeal or settlement), at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Person pursuant Party. Notwithstanding anything in this Section 8.4(b) to Section 7.03(a)the contrary, the Indemnifying Party will shall not be entitled to assume the defense of a Third Party Claim pursuant to the first sentence of this Section 8.4(b) if (i) such claim involves potential criminal liability, (ii) the Indemnified Party reasonably determines that it would be inappropriate for a single counsel to represent all parties under applicable standards of legal ethics, (iii) such claim seeks an injunction or other equitable relief against the Indemnified Party, or (iv) the Indemnifying Party fails to defend such action in a timely and control reasonably manner or the Indemnified Party reasonably determines that the amount of the Third Party Claim if successful would be likely to exceed the Indemnifying Party’s liability under this Agreement. In any Third Party Claim defended by the Indemnifying Party, (x) the Indemnified Party shall have the right to be represented by counsel and accountants at its own expense, (y) to the extent the Indemnified Party is not represented by its own counsel, the Indemnifying Party shall make itself reasonably available to the Indemnified Party to discuss the status of such Third Party Claim Claim, and (z) the parties shall render to each other such assistance as may be reasonably required in order to ensure the proper and adequate defense of such Third Party Claim, but in the case of clauses (y) an (z), at the expense of the Indemnifying Party and subject to the provisions of this further limitations set forth in Section 7.03(b8.4(e). After written .
(c) If notice by is given to the Indemnifying Party of the commencement of any Third Party Claim and the Indemnifying Party does not, within 30 days after the Indemnified Party’s notice is given, give notice to the Indemnified Person Party of its election to assume the defense and control of a such Third Party Claim, or if the Indemnifying Party is not entitled to assume the defense of such Third Party Claim pursuant to Section 8.4(b), the Indemnified Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 (upon notice to the contraryIndemnifying Party) have the right to undertake the defense of such claim at the Indemnifying Party’s expense. The Indemnifying Party may elect to participate in such proceedings, until such negotiations or defense at any time as at its own expense.
(d) No compromise or settlement of any Third Party Claim may be effected by the Indemnifying Party assumes without the defense other party’s prior written consent unless (i) there is no finding or admission of any violation of Law or any violation of the rights of any Person or any other wrongdoing, (ii) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party, and control of (iii) the Indemnified Party and its Affiliates receive an unconditional release from all Liabilities with respect to such claim. The Indemnified Party may only settle a Third Party Claim as provided in this Section 7.03, to the Indemnified Person shall have extent that the right Indemnifying Party fails to defend such Third Party Claim, subject to the limitations set forth Claim in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending a timely and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claimreasonably manner.
(ce) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any All of the assets of any Indemnified Person parties shall reasonably cooperate (at the Indemnifying Party’s expense) in the defense or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect prosecution of any Third Party Claim in respect of which a claim for indemnification may be sought under Section 8.2 or Section 8.3 and each of the Buyer and the Sellers (or a duly authorized Representative of such party) shall (and shall cause their Affiliates to) furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith; provided, however, that no party shall be consented required to by provide records or information to the extent the provision of such information would cause the attorney-client or similar privilege to be waived.
(f) In the event any Indemnified Person without Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the express written consent Indemnified Party shall deliver notice of such claim promptly to the Indemnifying Party.
, describing in reasonable detail the facts giving rise to any claim for indemnification hereunder, the amount or method of computation of the amount of such claim (dif known) If an Indemnifying Party makes any payment on an Indemnified Claim, and such other information with respect thereto as the Indemnifying Party may reasonably request. The failure to provide such notice, however, shall be subrogated, not release the Indemnifying Party from any of its obligations under this Article VIII except to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Indemnifying Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to is prejudiced by such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayedfailure.
Appears in 2 contracts
Samples: Asset and Share Purchase Agreement, Asset and Share Purchase Agreement (Enpro Industries, Inc)
Procedures. (a) If Promptly after obtaining knowledge of any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a)matter that a Buyer Indemnitee or Seller Indemnitee, or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification as applicable (the “Indemnified PersonParty”) shall give written notice ), believes will entitle the Indemnified Party to indemnification from the other Party from whom such indemnification is sought (the “Indemnifying Responsible Party”) promptly (and in any event within 10 days) after under this Section 10, the Indemnified Person (orParty shall provide to the Responsible Party written notice describing the matter in reasonable detail, if including the Indemnified Person is a corporation, any officer or director nature of the Indemnified Person) becomes aware claim, the basis for the indemnification obligation and the estimated amount of Losses resulting therefrom to the extent then feasible (which estimate shall not be conclusive of the facts giving rise to final amount of such claim for indemnification claim) (an a “Indemnified Notice of Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to To the extent that (i) any such failure matter relates to any Third Party Claim, such claim, action, suit or delay in giving notice causes proceeding will be governed by Section 10.3(b) below. For claims for indemnification under this Section 10 other than those relating to Third Party Claims, the amounts paid or Responsible Party shall have thirty (30) days after its receipt of the Notice of Claim to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice respond to the Indemnifying Party or (iiclaim(s) such notice is not delivered described therein. Such response shall set forth, in reasonable detail, the Responsible Party’s objection(s), if any, to the Indemnifying claim(s) and its basis for such objection(s). If the Responsible Party prior fails to provide such a response with such time period, the expiration of Responsible Party will be deemed to have conceded the applicable survival period claim(s) set forth in Section 7.01the Notice of Claim. If the Responsible Party provides its response within such time period, the Indemnified Claim arises from Party and the assertion Responsible Party shall negotiate the resolution of the claim(s) for a period of not less than twenty (20) Business Days after such response is provided. If the Responsible Party and the Indemnified Party are unable to resolve any such claim(s) within such time period, the Indemnified Party shall be entitled to pursue any legal remedies available to the Indemnified Party against the Responsible Party with respect solely to the unresolved claim(s), subject to the other provisions of this Section 10.
(b) If a claim, action, suit or the commencement of any Proceeding, brought proceeding by a Person that is not other than a Parent Company Party hereto or a Spinco Company its respective Affiliates (a “Third Party Claim”)) is made against any Indemnified Party, any and if such notice Indemnified Party intends to seek indemnification with respect thereto under this Section 10, such Indemnified Party shall promptly notify the Responsible Party of such claims; provided, however, that the failure to so notify shall not relieve the Responsible Party of its obligations hereunder, except to the Indemnifying extent that the Responsible Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the Indemnifying Party will be entitled to assume the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claimactually prejudiced thereby.
(c) The Indemnifying Responsible Party shall be authorized have thirty (30) days after receipt of such notice to consent elect to a assume the conduct and control, at the expense of the Responsible Party, of the settlement of, or the entry of any judgment arising from, any Third Party Claimsdefense thereof, and the Indemnified Person Party shall consent cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to a participate in such settlement ofor defense through counsel chosen by such Indemnified Party and the fees and expenses of such counsel shall be borne by the Indemnified Party. Notwithstanding the foregoing, or the entry Responsible Party shall not be entitled to assume control of the defense as to any judgment arising frommatter, and if subject to indemnification under this Section 10, shall pay the reasonable fees and expenses of counsel selected and retained by the Indemnified Party, if: (i) the Responsible Party does not elect to undertake the defense of such Third Party ClaimsClaim within thirty (30) days after the receipt of the Indemnified Party’s Notice of Claim; or (ii) the claim for indemnification directly relates to any criminal proceeding, if action or indictment against the Indemnified Party (A) such settlement collectively, the “Litigation Control Conditions”). If the claim meets one or more of the Litigation Control Conditions, the Indemnified Party shall have the right to assume control of the defense of the claim but shall not encumber thereby waive any of right to indemnification therefor pursuant to this Agreement; provided, however, that the assets of any Indemnified Person or contain any restriction or condition that would apply Party shall not consent to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or an entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) settle such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person claim without the express prior written consent of the Indemnifying Responsible Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party which consent shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed. The Responsible Party shall be permitted independently to consent to an entry of judgment or settle any Third Party Claim; provided that in the event such judgment or settlement includes any obligation being imposed on the Indemnified Party other than the payment of cash, then such judgment or settlement shall not be entered into without the prior written consent of the Indemnified Party.
(d) Any Indemnified Party shall cooperate in all reasonable respects with the Responsible Party and its attorneys in the investigation, trial and defense of any Third Party Claim and any appeal arising therefrom and, at the expense of the Responsible Party, shall furnish such books, records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection therewith. Such cooperation shall include access during normal business hours afforded to the Responsible Party and its agents and representatives to, and reasonable retention by the Indemnified Party of, books, records and information which have been identified by the Responsible Party as being reasonably relevant to such Third Party Claim, including with respect to any Tax-related Third Party Claim, causing Buyer to make available to Seller or its representative Tax Returns and related work papers, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Parties shall cooperate with each other in any notifications to insurers.
(e) Within five (5) Business Days after it is determined pursuant to this Section 10 that any amount is due to any Buyer Indemnitee such amount shall be paid by Seller, in each such case, in cash by wire transfer of immediately available funds, to Buyer’s account. Within five (5) Business Days after it is determined pursuant to this Section 10 that any amount is due to any Seller Indemnitee under this Section 10, such amount shall be paid by Buyer, in cash by wire transfer of immediately available funds, to Seller’s designated account. If any payment required under this Section 10.3(e) is not made in full within five (5) Business Days after it is determined under this Section 10 that such payment is due, the unpaid part of such payment will thereafter bear simple interest at a rate equal to the prime rate as disclosed in The Wall Street Journal plus 9% per annum or, if such rate exceeds the maximum rate allowed by law, at the maximum rate allowed by law, until paid in full.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Cherokee Inc)
Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person The party seeking indemnification under Section 10.02 or Section 10.03 (the “"Indemnified Person”Party") shall agrees to give prompt written notice notice, but no later than 5 days after receipt thereof, to the Party from party against whom such indemnification indemnity is sought (the “"Indemnifying Party”") promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceedingsuit, brought by a Person that is not a Parent Company action or a Spinco Company proceeding (a “Third Party "Claim”), any ") in respect of which indemnity may be sought under such notice to Section and will provide the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to such information with respect thereto that the Indemnified Person in connection with such Third Indemnifying Party Claimmay reasonably request.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the The Indemnifying Party will shall be entitled to assume participate in the defense and control of such Third Party of, investigation of, or corrective action required to be undertaken in response to, any Claim subject to the provisions of this Section 7.03(b). After written notice asserted by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a third party, including any Governmental Authority ("Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim") and, subject to the limitations set forth in this Section 7.03or Section 10.03, shall be entitled to control and appoint lead counsel for such defense, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall each case at all times act as if all Damages relating its expense subject to the Third Party Claim were for its own account deductible and shall act maximum liability described in good faith Section 10.02 and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shallSection 10.03, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claimas applicable.
(c) The If the Indemnifying Party shall be authorized to consent to a settlement of, or assume the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any control of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect defense of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person in accordance with respect to such claim.
(e) Without limiting the provisions of this Section 7.03or Section 10.03, it is acknowledged and agreed that Parent (i) the Indemnifying Party shall defend and control obtain the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance prior written consent of the foregoing, the Parties acknowledge and agree that the provisions Indemnified Party (which shall not be unreasonably withheld) before entering into any settlement of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the such Third Party Claim described in Schedule A-17 (if the “MSA Matter”), settlement does not release the Parties acknowledge Indemnified Party from all liabilities and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments obligations with respect to such Third Party Claim or if the settlement imposes injunctive or other equitable relief against the Indemnified Party and all Proceedings relating thereto, including (ii) the defense of claims in respect thereof by Mission Support Alliance, LLC, Indemnified Party shall consult with Parent regarding any material developments and decisions be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the MSA Matter Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim (including any counterclaims filed by Sellers) and shall consider provide access to properties and individuals as reasonably requested and furnish or cause to be furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith. This cooperation shall be provided without cost or expense other than reimbursement of out-of-pocket travel or similar expenses subject to the provisions of Section 10.02 and Section 10.03, as applicable.
(e) Other than with respect to liabilities relating to matters covered by Section 7.07(a) (which shall be governed solely by Section 7.07), if the Indemnifying Party is required to indemnify the Indemnified Party with respect to any Claim or assumes the defense of any Third Party Claim under Section 10.02 or Section 10.03, the Indemnifying Party shall have the right, in good faith faith, to determine all matters relating to the views utilization of Parent any insurance policy of any Transferred Company in respect of connection with the MSA Matter. Neither Spinco nor any Spinco Claim or Third Party Claim and shall be entitled to control all decisions relating to such claims under such insurance policies as if it were the named insured thereunder; provided, however, that notwithstanding anything in this 10.04(e) to the contrary, the Indemnified Party shall consent entitled to indemnification pursuant to the provisions of Section 10.02 or Section 10.03 regardless of whether a claim under such insurance policies is pursued and regardless of whether any proceeds from such claim are collected. Buyer and Parent agree to any settlement or entry cooperate and take all reasonable actions necessary to implement the intent of judgment with respect to the MSA Matter provisions set forth in this clause (including through any approval of or consent to e), and each Indemnified Party further agrees that it will not take any action that is inconsistent with the provisions of this clause (e) and will refrain from taking any action or doing anything that would undermine the MSA joint ventureinsurance benefits available to Indemnifying Party as contemplated by this Section 10.04(e).
(f) without To the express written consent of Parentextent that the procedures set forth in this Section 10.04 conflict with the procedures set forth in Section 10.03, such consent not to be unreasonably withheld, conditioned or delayedthe procedures set forth in Section 10.03 shall govern.
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement (Hubbell Inc), Stock and Asset Purchase Agreement (Us Industries Inc /De)
Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person The party seeking indemnification under this Article 10 (the “Indemnified PersonParty”) shall agrees to give written prompt notice in writing to the Party from party against whom such indemnification indemnity is to be sought (the “Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware assertion of any claim or the facts giving rise to such claim for indemnification commencement of any suit, action or proceeding by any third party (an a “Indemnified Third-Party Claim”), ) in respect of which indemnity may be sought under such section. Such notice shall specify set forth in reasonable detail the factual facts and circumstances of such Third-Party Claim and the basis of for indemnification in respect thereof (taking into account the information then available to the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification thereforParty). The failure of an the Indemnified Person Party to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, so notify the Indemnifying Party shall not constitute a waiver relieve the Indemnifying Party of that Person’s claims to indemnification pursuant to Section 7.02its obligations hereunder, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by has prejudiced the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party ClaimParty.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the The Indemnifying Party will be entitled to assume the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claimshall, subject to the limitations set forth in this Section 7.0310.03, in such manner as it may deem appropriatehave the right, upon written notice to the Indemnified Party, to assume the defense of any Third-Party Claim at the expense of the Indemnifying Party, with counsel selected by the Indemnifying Party. Without regard to whether If the Indemnifying Party or does not so elect to assume the Indemnified Person is defending and controlling any defense of such Third Third-Party Claim, it the Indemnified Party shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in have the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting sole right to assume the defense thereof shall at all times act as if all Damages relating to the Third of such Third-Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefromClaim. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with If the Indemnifying Party in connection with any Third assumes the defense of such Third-Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party and shall not constitute indemnifiable Damages hereunder unless (i) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (ii) in the reasonable judgment of the Indemnified Party’s counsel, the representation of both the Indemnifying Party and such Indemnified Party by the same counsel would present such counsel with a conflict of interest under applicable standards of professional conduct.
(c) The If the Indemnifying Party assumes the control of the defense of any Third-Party Claim in accordance with the provisions of this Section 10.03, the Indemnifying Party shall be authorized to obtain the prior written consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person Party (which consent shall consent to a not be unreasonably withheld, delayed or conditioned) before entering into any settlement of, or the entry of any judgment arising from, such Third Third-Party ClaimsClaim, if the settlement (A) does not release the Indemnified Party and its Affiliates from all liabilities and obligations with respect to such settlement shall not encumber Third-Party Claim, (B) imposes injunctive, equitable relief or any obligation on the Indemnified Party or any of its Affiliates other than solely the payment of money damages for which the Indemnified Party will be fully indemnified hereunder, (C) involves a finding or admission of wrongdoing or violation of Applicable Law by the Indemnified Party, (D) encumbers the assets of any the Indemnified Person Party or contain imposes any restriction or condition that would apply to or adversely affect the Indemnified Party or (E) reasonably could be expected to have a material adverse effect on the Taxes of Parent, the Surviving Corporation or their respective Affiliates for a taxable period or portion thereof beginning after the Closing Date. The Indemnified Party shall not settle any Third-Party Claim without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, delayed or conditioned).
(d) Each party shall cooperate, and cause its Affiliates to cooperate, in the defense or prosecution of any Third-Party Claim, 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 reasonably requested in connection therewith.
(e) In the event an Indemnified Person or Party has a claim for indemnity under this Article 10 against the Indemnifying Party that does not involve a Third-Party Claim (a “Direct Claim”), the Indemnified Party agrees to give prompt notice thereof in writing to the conduct Indemnifying Party. Such notice shall set forth in reasonable detail the facts and circumstances of that Person’s business, such Direct Claim and the basis for indemnification in respect thereof (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf taking into account the information then available to the Indemnified Party). The failure of the Indemnified Person or any Party to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its Affiliatesobligations hereunder, and (C) except to the extent such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim failure shall be consented to by any Indemnified Person without the express written consent of have prejudiced the Indemnifying Party.
(df) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to To the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of anything in this Section 7.0310.03 is inconsistent with Section 8.01(e), it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b8.01(e) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments govern with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayedTax Contest.
Appears in 2 contracts
Samples: Merger Agreement (Actua Corp), Merger Agreement (Envestnet, Inc.)
Procedures. (ai) If any Parent Indemnified Party the Seller Parties shall seek indemnification pursuant to Section 7.02(a19(b), or if any Spinco Indemnified Party the Buyer Parties shall seek indemnification pursuant to Section 7.02(b19(a), the Person seeking indemnification (the “Indemnified Person”) Party shall give written notice to the Indemnifying Party from whom such indemnification is sought (the “Indemnifying Party”) promptly (and in any event within 10 thirty (30) days) after the Indemnified Person Party (or, if the Indemnified Person Party is a corporation, any officer or director employee of the Indemnified PersonParty) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify ) specifying in reasonable detail the factual basis of the Indemnified Claim, state stating the amount of Damages (or the Losses, if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain containing a reference to the provision of this the Agreement in respect of which such Indemnified Claim arises and demand demanding indemnification therefor. The failure of an Notwithstanding any other provision to the contrary, the Indemnifying Party shall not be required to indemnify, defend or hold harmless any Indemnified Person to provide notice Party against or reimburse any Indemnified Party for any Losses unless the Indemnified Party has notified the Indemnifying Party in writing in accordance with this Section 7.03(a), 19(e) of a pending or any delay in providing threatened claim with respect to such notice, shall not constitute a waiver matters within thirty (30) days of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been becoming aware of such pending or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of threatened claim and within the applicable survival period set forth in Section 7.0110. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceedingsuit, action, proceeding or Remedial Action brought by a Person that is not a Parent Company or a Spinco Company party hereto (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person Parry in connection with such Third Party Claim. With respect to any Third Party Claim asserted or brought prior to the Closing Date, notice of such Third Party Claim shall be deemed to have been delivered on the Closing Date.
(bii) In the event of Upon receipt of notice of a Third Party Claim from an Indemnified Person Party pursuant to this Section 7.03(a), 19(e) the Indemnifying Party will be entitled to assume the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b)19(e) provided that in the case of matters involving actions or claims that, if not fast paid, discharged or otherwise complied with would result in a material interruption or cessation of the conduct of the Business, the Indemnifying Party shall act promptly to avoid, to the extent practicable, any such effects on the Business. After written notice by the Indemnifying Party to the Indemnified Person Party of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person Party for any legal fees or expenses subsequently incurred by such Indemnified Person Party in connection therewith. Notwithstanding anything in this Section 7.03 19(e) to the contrary, until such time as if the Indemnifying Party assumes the does not assume defense and control of a Third Party Claim as provided in this Section 7.0319(e), the Indemnified Person Party shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.0319(e), in such manner as it may deem appropriate. Without regard to whether Whether the Indemnifying Party Parry or the Indemnified Person Party is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of reasonable recognized standing and competence, shall take reasonable all steps necessary in the investigation, defense or settlement thereof, and shall at all times diligently and promptly pursue the resolution thereof. The Party party conducting the defense thereof shall at all times act as if all Damages Losses relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages Losses therefrom. The Indemnified Person Party shall, and shall cause each of its Affiliates Affiliates, directors, officers, employees, and Representatives agents to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(ciii) The Subject to the provisions of Sections 19(e)(ii) and 19(e)(iv) the Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person Party shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims; provided, if that the Indemnifying Party shall (Aa) pay or cause to be paid all amounts arising out of such settlement judgment concurrently with the effectiveness thereof; (b) shall not encumber any of the assets of any Indemnified Person Party or contain agree to any restriction or condition that would apply to such Indemnified Person Party or to the conduct of that Personparty’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, ; and (Cc) such settlement contains shall obtain, as a condition theretoof any settlement or other resolution, a complete release of each Indemnified Party against any and all damages resulting from, arising out of or incurred with respect to such settlement or other resolution. Except for the Indemnified Person. No foregoing, no settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnifying Party or Indemnified Person Party without the express written consent of the Indemnifying Partyother party.
iv) In the case of the indemnification contemplated by Section 19(e)(ii), in the event that the Indemnifying Party desires to settle the matters referenced therein or consent to the entry of any judgment arising thereunder and the Indemnified Party does not wish to consent to such settlement or entry of judgment, the Indemnified Party shall have no obligation to consent to the settlement or entry of judgment provided that it agrees in writing to pay and be responsible for 100% of any Losses; provided that the Indemnified Party shall not be required to consent to any settlement or agree to be responsible for the payment of Losses thereafter incurred with respect to any matter the settlement or entry of judgment of which would require the consent of such Indemnified Party pursuant to Section 19(e)(iii). Notwithstanding the foregoing, an Indemnifying Party may, at its option and expense, participate in the defense of any Indemnified Claim.
v) If the Indemnifying Party and the Indemnified Party are unable to agree with respect to a procedural matter arising under this Section 19(e) the Indemnifying Party and the Indemnified Party shall, within ten (d10) days after notice of disagreement given by either party, agree upon a third-party referee (“Referee”), who shall be an attorney and who shall have the authority to review and resolve the disputed matter. The parties shall present their differences in writing (each party simultaneously providing to the other a copy of all documents submitted) to the Referee and shall cause the Referee promptly to review any facts, law or arguments either the Indemnifying Party or the Indemnified Party may present. The Referee shall be retained to resolve specific differences between the parties within the range of such differences. Either party may request that all discussions with the Referee by either party be in each other’s presence. The decision of the Referee shall be final and binding unless both the Indemnifying Party and the Indemnified Party agree. The parties shall share equally all costs and fees of the Referee.
vi) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person Party to any insurance benefits or other claims or benefits of the Indemnified Person Party with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Mastec Inc), Asset Purchase Agreement (Mastec Inc)
Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person The party seeking indemnification under this Section 6 (the an “Indemnified PersonParty”) shall give written notice to the Party each party from whom such indemnification is being sought (the each, an “Indemnifying Party”) promptly (and in notice of any event within 10 days) after the matter for which such Indemnified Person (orParty is seeking indemnification, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state stating the amount of Damages (or the Damages, if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain and containing a reference to the provision provisions of this Agreement in respect of which such Indemnified Claim arises and demand right of indemnification thereforis claimed or arises. The failure obligations of an Indemnified Person to provide notice in accordance with Indemnifying Party under this Section 7.03(a), or 6 with respect to Damages arising from any delay in providing such notice, shall not constitute a waiver claims of that Person’s claims to indemnification pursuant to Section 7.02, except any third party which are subject to the extent that indemnification provided for in this Section 6 collectively, (i“Third Party Claims”) shall be governed by and contingent upon the following additional terms and conditions: if an Indemnified Party shall receive initial notice of any such failure or delay in giving notice causes Third Party Claim, the amounts paid or to be paid by Indemnified Party shall give the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the Indemnifying Party will be entitled to assume the defense and control of such Third Party Claim subject within such time frame as is necessary to allow for a timely response and in any event within 30 days of the receipt by the Indemnified Party of such notice; provided, however, that the failure to provide such timely notice shall not release the Indemnifying Party from any of its obligations under this Section 6 except to the provisions extent the Indemnifying Party is materially prejudiced by such failure. The Indemnifying Party shall be entitled to assume and control the defense of this Section 7.03(b)such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within 30 days of the receipt of such notice from the Indemnified Party; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party (upon advice of counsel) for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel, at the expense of the Indemnifying Party, provided that the Indemnified Party and such counsel shall contest such Third Party Claims in good faith. After written notice In the event the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party's expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party to Party. Similarly, in the event the Indemnified Person of its election to assume Party is, directly or indirectly, conducting the defense and control of a against any such Third Party Claim, the Indemnifying Party shall not be liable to cooperate with the Indemnified Party in such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 defense and make available to the contraryIndemnified Party, until such time as at the Indemnifying Party assumes Party’s expense, all such witnesses, records, materials and information in the defense and Indemnifying Party’s possession or under the Indemnifying Party’s control of a Third Party Claim relating thereto as provided in this Section 7.03, is reasonably required by the Indemnified Person shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriateParty. Without regard to whether the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to not, without the written consent of the Indemnified Party, (i) settle or compromise any Third Party Claim or consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnified Person shall consent to Party of a settlement of, or the entry written release from all liability in respect of any judgment arising from, such Third Party Claims, if Claim or (Aii) such settlement shall not encumber any of the assets of any Indemnified Person settle or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of compromise any Third Party Claim in any manner that may adversely affect the Indemnified Party. Finally, no Third Party Claim which is being defended in good faith by the Indemnifying Party or which is being defended by the Indemnified Party as provided above in this Section 6(b) shall be consented to settled by any the Indemnified Person Party without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed.
Appears in 2 contracts
Samples: Stock Purchase Agreement (IntelliHome, Inc.), Stock Purchase Agreement (IntelliHome, Inc.)
Procedures. (a) If any Parent In order for a Buyer Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Seller Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification (the “Indemnified PersonParty”) to be entitled to any indemnification provided for under this Agreement as a result of a Loss or a claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall give written deliver notice thereof to the Party from party against whom such indemnification indemnity is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) after the receipt by such Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director Party of written notice of the Indemnified Person) becomes aware of Third Party Claim, describing in reasonable detail the facts giving rise to such any claim for indemnification (an “Indemnified Claim”)hereunder, which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount or method of Damages (or if not known, a good faith estimate computation of the amount of Damagessuch claim (if known) and such other information with respect thereto as the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification thereforIndemnifying Party may reasonably request. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, however, shall not constitute a waiver release the Indemnifying Party from any of that Person’s claims to indemnification pursuant to Section 7.02, its obligations under this Article VIII except to the extent that the Indemnifying Party is prejudiced by such failure.
(ib) any The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within thirty (30) days of receipt of notice from the Indemnified Party of the commencement of such failure or delay in giving notice causes Third Party Claim, to assume the amounts paid or to be paid defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party shall not have the right to assume the defense of any Third Party Claim that (x) seeks non-monetary damages, (y) relates to a criminal action or involves claims by a Governmental Authority or (z) seeks damages in excess of the maximum amount for which indemnification may be required to be greater than they otherwise would provided by the Indemnifying Party pursuant to this Article VIII. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have been or otherwise results the right to employ separate counsel and to participate in prejudice the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or (ii) such notice under the Indemnified Party’s control relating thereto as is not delivered to reasonably required by the Indemnifying Party. If the Indemnifying Party prior to assumes the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion defense of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), the Indemnified Party shall agree to any settlement, compromise or discharge of such notice to Third Party Claim that the Indemnifying Party shall be accompanied may recommend and that by a copy its terms obligates the Indemnifying Party to pay the full amount of any papers theretofore served on or delivered to the Indemnified Person liability in connection with such Third Party Claim.
(b) In , and which releases the event of receipt of notice of a Indemnified Party completely in connection with such Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), Claim. Whether or not the Indemnifying Party will be entitled to assume assumes the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the Indemnifying Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent not to be liable unreasonably delayed or conditioned.
(c) In the event any Indemnified Party should determine that it has a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Person for any legal fees or expenses subsequently incurred by Party, the Indemnified Party shall deliver notice of such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 claim promptly to the contraryIndemnifying Party, until describing in reasonable detail the facts giving rise to any claim for indemnification hereunder, the amount or method of computation of the amount of such time claim (if known) and such other information with respect thereto as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03may reasonably request. The failure to provide such notice, the Indemnified Person however, shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether not release the Indemnifying Party or from any of its obligations under this Article VIII except to the extent that the Indemnifying Party is prejudiced by such failure. The Indemnified Party shall reasonably cooperate and assist the Indemnifying Party in determining the validity of any claim for indemnity by the Indemnified Person is defending Party and controlling any in otherwise resolving such Third Party Claimmatters. Such assistance and cooperation shall include providing reasonable access to and copies of information, it shall select counselrecords and documents relating to such matters, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary furnishing employees to assist in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights matters and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person providing legal and business assistance with respect to such claim.
(e) Without limiting matters. For the provisions avoidance of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoingdoubt, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree not be entitled to commence any settlement or entry of judgment with respect Action against the Indemnifying Party for indemnification pursuant to this Section 8.4(c) unless the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayednotice and procedural provisions set forth herein shall have been satisfied prior thereto.
Appears in 2 contracts
Samples: Asset Purchase Agreement (New Media Investment Group Inc.), Asset Purchase Agreement (A. H. Belo Corp)
Procedures. (a) If any Parent In order for a Buyer Indemnified Party shall seek or a Seller Indemnified Party (each, an “Indemnified Party”) to be entitled to any indemnification pursuant to provided for under this Article VIII in respect of, arising out of or involving a Loss or a claim or demand made by any Person (other than by an Indemnified Party, which claims are addressed in Section 7.02(a8.4(c)) against the Indemnified Party (a “Third Party Claim”), or if any Spinco such Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification (the “Indemnified Person”) shall give written must deliver notice thereof to the Party from against whom such indemnification indemnity is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) with reasonable promptness after the receipt by such Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director Party of written notice of the Indemnified Person) becomes aware of Third Party Claim and will provide the facts giving rise to Indemnifying Party with such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail information with respect thereto as the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification thereforIndemnifying Party may reasonably request. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall however, will not constitute a waiver release the Indemnifying Party from any of that Person’s claims to indemnification pursuant to Section 7.02, its obligations under this Article VIII except to the extent that the Indemnifying Party is materially prejudiced by such failure.
(ib) If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party against any such failure or delay in giving and all Losses that may result from a Third Party Claim pursuant to the terms of this Agreement, the Indemnifying Party will have the right, upon written notice causes to the amounts paid or Indemnified Party, to be paid assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnified Party. Thereafter, the Indemnified Party will give the Indemnifying Party or (ii) such notice is not delivered reasonable access during normal business hours to the Indemnifying Party prior to the expiration books, records and assets of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claim and the right, upon prior notice during normal business hours, to interview at a mutually convenient time any employee of the Indemnified Party related to the such Third Party Claim.
(b) In . The Indemnifying Party will be liable for the event fees and expenses of receipt of notice of a one outside counsel necessary to defend such Third Party Claim from an (and not any fees and expenses allocated to any internal counsel) employed by the Indemnified Person pursuant Party for any period during which the Indemnifying Party has failed to assume the defense thereof (other than during any period during which the Indemnified Party has failed to give notice of the Third Party Claim as provided in Section 7.03(a8.4(a)), and the fees and expenses of counsel will constitute Losses for purposes of this Agreement. If the Indemnifying Party does not expressly elect to assume the defense of such Third Party Claim, the Indemnified Party will have the sole right to assume the defense of and to settle such Third Party Claim. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party will reasonably cooperate in the defense or prosecution of such Third Party Claim, and the Indemnified Party will have the right to employ separate counsel and to participate in the defense thereof (it being understood and agreed that the Indemnifying Party will control such defense), but the fees and expenses of such counsel of the Indemnified Party will be at the expense of the Indemnified Party unless (1) the employment of such counsel at the Indemnifying Party’s expense will have been specifically authorized in writing by the Indemnifying Party or (2) the named parties to the Third Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and representation by counsel to the Indemnifying Party of both the Indemnifying Party and such Indemnified Party would reasonably be expected to present such counsel with a conflict of interest. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party will not, without the prior written consent of the Indemnified Party (which consent will not be entitled unreasonably withheld, conditioned or delayed), enter into any settlement or compromise or consent to assume the defense and control entry of any judgment with respect to such Third Party Claim if such settlement, compromise or judgment (i) involves a finding or admission of wrongdoing, (ii) does not include an unconditional written release by the claimant or plaintiff of the Indemnified Party from all liability in respect of such Third Party Claim subject to or (iii) imposes equitable remedies or any obligation on the provisions Indemnified Party other than solely the payment of this Section 7.03(b)money damages for which the Indemnified Party will be indemnified hereunder, and which are paid in full at the time of such settlement, compromise or judgment. After written notice by Notwithstanding the foregoing, whether or not the Indemnifying Party to the Indemnified Person of its election to assume assumes the defense and control of a Third Party Claim, the Indemnifying Indemnified Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to will not, without the contrary, until such time as prior written consent of the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03(which consent will not be unreasonably withheld, the Indemnified Person shall have the right to defend such Third Party Claimconditioned or delayed), subject admit any liability, enter into any settlement or compromise or consent to the limitations set forth in this Section 7.03, in entry of any judgment with respect to such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The In the event any Indemnified Party should have a claim against any Indemnifying Party shall be authorized to consent to hereunder that does not involve a settlement of, or the entry of any judgment arising from, any Third Party ClaimsClaim being asserted against or sought to be collected from such Indemnified Party (an “Inter-Party Claim”), and the Indemnified Person shall consent Party will deliver notice in writing of such Inter-Party Claim with reasonable promptness following the occurrence of the event giving rise to a settlement ofsuch claim to the Indemnifying Party, or specifying in reasonable detail the entry basis of any judgment arising fromsuch claim. The failure to provide such notice, such Third however, will not release the Indemnifying Party Claims, if (A) such settlement shall not encumber from any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or its obligations under this Article VIII except to the conduct of extent that Person’s businessthe Indemnifying Party is materially prejudiced by such failure. Thereafter, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf the Indemnified Party will give the Indemnifying Party reasonable access during normal business hours to the books, records and assets of the Indemnified Person Party which evidence or support such claim or the act, omission or occurrence giving rise to such Inter-Party Claim and the right, upon prior notice during normal business hours, to interview at a mutually convenient time any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release employee of the Indemnified PersonParty related to the act, omission or occurrence giving rise to such Inter-Party Claim. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of If the Indemnifying Party.
(d) If an Indemnifying Party makes disputes its liability with respect to any payment on an Indemnified Claimsuch claim, the Indemnifying Party shall be subrogated, and the Indemnified Party will proceed to the extent negotiate a resolution of such paymentdispute and, to all rights and remedies of if not resolved through negotiations, such dispute will be resolved in accordance with the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions terms of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayedAgreement.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (MSG Entertainment Spinco, Inc.), Membership Interest Purchase Agreement (Madison Square Garden Co)
Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person The party seeking indemnification under Sections 9.08 or 11.02 (the “"Indemnified Person”Party") shall agrees to give written prompt notice to the Party from party against whom such indemnification indemnity is sought (the “"Indemnifying Party”") promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceedingsuit, brought by a Person action or proceeding ("Claim") in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto that is not a Parent Company or a Spinco Company (a “Third the Indemnifying Party Claim”), any such notice may reasonably request. The failure to so notify the Indemnifying Party shall be accompanied by a copy not relieve the Indemnifying Party of any papers theretofore served on or delivered its obligations hereunder, except to the Indemnified Person in connection with extent such Third Party Claimfailure shall have adversely prejudiced the Indemnifying Party.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the The Indemnifying Party will shall be entitled to assume participate in the defense and control of such Third Party any Claim subject to the provisions of this Section 7.03(b). After written notice asserted by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a any third party ("Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim") and, subject to the limitations set forth in this Section 7.03Section, in such manner as it may deem appropriate. Without regard shall be entitled to whether control the Indemnifying Party or the Indemnified Person is defending and controlling any defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that it has acknowledged responsibility for the defense of such Claim, it ; and provided further that The Limited shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in control the investigation, defense or settlement thereofof, and shall diligently and promptly pursue appoint the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party lead counsel in connection with any Third Party Claimwith, the Retained Litigation.
(c) The If the Indemnifying Party shall be authorized to consent to a settlement of, or assume the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any control of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect defense of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person in accordance with respect to such claim.
(e) Without limiting the provisions of this Section 7.0311.03, it is acknowledged and agreed that Parent shall defend and control (1) the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Indemnifying Party shall consent or agree to any settlement or entry of judgment with respect to obtain the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express prior written consent of Parent, such consent the Indemnified Party (which shall not to be unreasonably withheld, conditioned or delayed) before entering into any settlement of such Third Party Claim and (2) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Charming Shoppes Inc), Stock Purchase Agreement (Limited Inc)
Procedures. Claims for indemnification under this Agreement shall be asserted and resolved as follows:
(a) If any Parent Person who or which is entitled to seek indemnification under Section 9.2 (an “Indemnified Party”) receives notice of the assertion or commencement of any claim asserted against an Indemnified Party by a third party (“Third Party Claim”) in respect of any matter that is subject to indemnification under Section 9.2, the Indemnified Party shall seek indemnification promptly (i) notify the Party obligated to the Indemnified Party pursuant to Section 7.02(a)9.2 above, or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification (the “Indemnified Person”) shall give written notice to the Party from whom such indemnification is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified PersonThird Party Claim and (ii) becomes aware of transmit to the facts giving rise to such claim for indemnification Indemnifying Party a written notice (an “Indemnified ClaimClaim Notice”), which notice shall specify ) describing in reasonable detail the factual basis nature of the Indemnified Third Party Claim, state a copy of all papers served with respect to such claim (if any), the amount of Damages (or if not known, a good faith Indemnified Party’s best estimate of the amount of Damages) Losses attributable to the Third Party Claim and the method basis of computation thereof, contain a reference the Indemnified Party’s request for indemnification under this Agreement. Failure to the provision of this Agreement in respect of which timely provide such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, Notice shall not constitute a waiver affect the right of that Personthe Indemnified Party’s claims to indemnification pursuant to Section 7.02hereunder, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been is prejudiced by such delay or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claimomission.
(b) In The Indemnifying Party shall have the event of receipt of notice of a right to defend the Indemnified Party against such Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), Claim. If the Indemnifying Party will be entitled notifies the Indemnified Party that the Indemnifying Party elects to assume the defense and control of such the Third Party Claim subject (such election to be without prejudice to the provisions right of the Indemnified Party to dispute whether such claim is an identifiable Loss under this Section 7.03(bARTICLE IX). After written notice by , then the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether Claim with counsel selected by the Indemnifying Party or (who shall be reasonably satisfactory to the Indemnified Person is defending and controlling any such Third Party ClaimParty), it shall select counselby all appropriate proceedings, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense to a final conclusion or settlement thereof, and shall diligently and promptly pursue at the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each discretion of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection accordance with any Third Party Claim.
(c) this Section 9.4(b). The Indemnifying Party shall be authorized to consent to a have full control of such defense and proceedings, including any compromise or settlement of, or thereof; provided that the entry of any judgment arising from, any Third Indemnifying Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber enter into any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person agreement without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party (which consent shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed); provided further, that such consent shall not be required if (i) the settlement agreement contains a complete and unconditional general release by the third party asserting the claim to all Indemnified Parties affected by the claim and (ii) the settlement agreement does not contain any sanction or restriction upon the conduct of any business by the Indemnified Party or its Affiliates. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim which the Indemnifying Party elects to contest, including the making of any related counterclaim against the Person asserting the Third Party Claim or any cross complaint against any Person. The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 9.4(b), and the Indemnified Party shall bear its own costs and expenses with respect to such participation.
(c) If the Indemnifying Party does not notify the Indemnified Party that the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 9.4(b), then the Indemnified Party shall have the right to defend, and be reimbursed for its reasonable cost and expense (but only if the Indemnified Party is actually ultimately determined to be entitled to indemnification hereunder) in regard to the Third Party Claim with counsel selected by the Indemnified Party (who shall be reasonably satisfactory to the Indemnifying Party), by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party. In such circumstances, the Indemnified Party shall defend any such Third Party Claim in good faith and have full control of such defense and proceedings; provided, however, that the Indemnified Party may not enter into any compromise or settlement of such Third Party Claim if indemnification is to be sought hereunder, without the Indemnifying Party’s consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 9.4(c), and the Indemnifying Party shall bear its own costs and expenses with respect to such participation.
(d) Any claim by an Indemnified Party on account of Losses that does not result from a Third Party Claim (a “Direct Claim”) will be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) days after the Indemnified Party becomes aware of such Direct Claim. Such notice by the Indemnified Party will describe the Direct Claim in reasonable detail, will include copies of all available material written evidence thereof and will indicate the estimated amount, if reasonably practicable, of damages that has been or may be sustained by the Indemnified Party. The Indemnifying Party will have a period of twenty (20) days within which to object or accept in writing such Direct Claim. Any such objection is called a “Notice of Claim Dispute.” If the Indemnifying Party does not so respond within such twenty (20) day period, the Indemnifying Party will be deemed to have rejected such claim, in which event the Indemnified Party will be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Agreement. Copies of each Notice of Claim Dispute shall be sent to Contributee and the Escrow Agent. If Contributee and Contributors fail to resolve any objection contained in such Notice of Claim Dispute within twenty (20) days after the date the Notice of Claim Dispute is delivered to Contributee, then, at the request of either Party, they shall meet in an attempt to resolve an objection described in such Notice of Claim Dispute and reach a written agreement with respect to such objection (a “Claim Settlement Agreement”). If Contributors and Contributee enter into a Claim Settlement Agreement, the objections contained in such Notice of Claim Dispute shall be deemed to be as resolved therein. If they are unable to resolve the objection described in such Notice of Claim Dispute within twenty (20) days after delivery to the recipient of such Notice of Claim Dispute, then Contributors and Contributee shall submit the objections contained in such Notice of Claim Dispute to arbitration as described in Section 9.5.
Appears in 2 contracts
Samples: Partnership Interests Contribution Agreement (Eagle Rock Energy Partners L P), Asset Contribution Agreement (Eagle Rock Energy Partners L P)
Procedures. (a) If any Parent Indemnified Party shall seek A party seeking indemnification pursuant to Section 7.02(a), Sections 7.2 or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification 7.3 (the an “Indemnified PersonParty”) shall give written prompt notice to the Party party from whom such indemnification is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claimclaim or assessment, or the commencement of any Proceedingaction, brought suit, audit or proceeding, by a Person that is not a Parent Company or a Spinco Company third party in respect of which indemnity may be sought hereunder (a “Third Party Claim”)) and will give the Indemnifying Party such information with respect thereto as the Indemnifying Party may reasonably request, any but no failure to give such notice shall relieve the Indemnifying Party of any liability hereunder (except to the extent the Indemnifying Party has suffered actual prejudice thereby). Notice may be given to any Frost Group Shareholder by giving notice to the Representative (defined below). The Indemnifying Party shall have the right, exercisable by written notice (the “Notice”) to the Indemnified Party within fifteen (15) days of receipt of notice from the Indemnified Party of the commencement or assertion of any Third Party Claim, to assume the defense of such Third Party Claim, using counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party. If the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the Indemnifying Party will be entitled fail to assume the defense and control of the Third Party Claim within such fifteen (15) day period, the Indemnified Party shall have the right to undertake the defense of such Third Party Claim subject to on behalf of the provisions of this Section 7.03(b)Indemnifying Party. After written notice by If the Indemnifying Party to the Indemnified Person of its election elects to assume the defense and control of a any such Third Party Claim, the Indemnifying 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 shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewithunreasonably withheld. Notwithstanding anything in this Section 7.03 to In the contrary, until such time as event that the Indemnifying Party assumes does not elect to assume the defense and control of a any such Third Party Claim as provided in this Section 7.03Claim, the Indemnified Person shall have Party may do any of the right to foregoing and/or defend such Third Party Claim, subject to all at the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether expense and on the account of the Indemnifying Party.
(b) The Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party ClaimParty, it shall select counsel, contractors, experts and consultants of recognized standing and competenceas the case may be, shall take reasonable steps necessary in any event have the right to participate, at its own expense, in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the of any Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with which the Indemnifying Party in connection with any Third Party Claimother is defending.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party ClaimsParty, if (A) such settlement it shall not encumber any of have assumed the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect defense of any Third Party Claim in accordance with the terms hereof, shall have the right, upon fifteen (15) business days prior written notice to the Indemnified Party, to consent to the entry of judgment with respect to, or otherwise settle such Third Party Claim provided the Indemnifying Party shall be consented solely obligated to by any satisfy and discharge such judgment or settlement, unless (i) the Third Party Claim involves equitable or other non-monetary damages or (ii) in the reasonable judgment of the Indemnified Person without Party such settlement would have a continuing material adverse effect on the express Indemnified Party, in which case such settlement only may be made with the written consent of the Indemnifying Indemnified Party.
(d) If an Whether or not the Indemnifying Party makes chooses to defend or prosecute any payment on an Indemnified claim involving a third party, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection therewith. Such cooperation shall include access during normal business hours afforded to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder, and the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of reimburse the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claimParty for all its reasonable out-of-pocket expenses in connection therewith.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Pharmaceutical Financial Syndicate, LLC), Stock Purchase Agreement (Winston Pharmaceuticals, Inc.)
Procedures. Claims for indemnification under this Agreement shall be asserted and resolved as follows:
(a) If Any Buyer Indemnitee or Seller Indemnitee claiming indemnification under this Agreement (an “Indemnified Party”) with respect to any Parent claim asserted against the Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified by a third party (“Third Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification (the “Indemnified PersonClaim”) in respect of any matter that is subject to indemnification hereunder shall give written notice to (i) notify the other Party from whom such indemnification is sought (the “Indemnifying Party”) promptly of the Third Party Claim within thirty (and in any event within 10 days30) after days of the date on which the Indemnified Person (or, if the Indemnified Person is a corporation, any officer Party knows or director should have known of the Indemnified PersonThird Party Claim, and (ii) becomes aware of transmit to the facts giving rise to such claim for indemnification Indemnifying Party a written notice (an a “Indemnified ClaimClaim Notice”), which notice shall specify ) describing in reasonable detail the factual nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), the basis of the Indemnified Claim, state Party’s request for indemnification under this Agreement and the amount of the Damages (or if estimated to arise therefrom. Subject to Section 10.01, failure to timely provide such Claim Notice shall not known, a good faith estimate affect the right of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand Party’s indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02hereunder, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been is materially prejudiced by such delay or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claimomission.
(b) In The Indemnifying Party shall have the event right to defend any such Third Party Claim, upon notice to the Indemnified Party within fifteen (15) days of receipt of notice a Claim Notice in respect of a such Third Party Claim from an Claim, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and satisfactory to the Indemnified Person pursuant to Section 7.03(a)Party. Notwithstanding the foregoing, the Indemnifying Party will shall not be entitled to assume the defense and control of any Third Party Claim for equitable or injunctive relief or any claim that would impose criminal liability. If the Indemnifying Party does not expressly elect to assume the defense of such Third Party Claim subject to within the provisions time period or in accordance with the first sentence of this Section 7.03(b9.03(b). After written notice by the Indemnifying Party to , the Indemnified Person of its election Party shall have the right to assume the defense of and to settle such Third Party Claim. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall, at the Indemnifying Party’s expense (but only if the Indemnified Party is actually entitled to indemnification hereunder), cooperate with the Indemnifying Party in such defense and, at no cost to the Indemnifying Party, make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of a any Third Party Claim, the Indemnifying Party shall not be liable to have full control of such Indemnified Person for defense and proceedings, including any legal fees compromise or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrarysettlement thereof; provided, until such time as however, that the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber enter into any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person agreement without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party (which consent shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed) unless, in the case of the Indemnifying Party being Seller or its Affiliates, such settlement agreement also covers in all material respects at least a part of the Retained Business that is subject to the same Third Party Claim and the Business is treated in a substantially similar manner as the Retained Business (other than exceptions related to the size of the Business relative to the Retained Business) in such settlement agreement. The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.03(b), and the Indemnified Party shall bear its own costs and expenses with respect to such participation.
(c) If the Indemnifying Party is not defending the Indemnified Party pursuant to Section 10.03(b), then the Indemnified Party shall defend, and be reimbursed for its reasonable cost and expense (but only if the Indemnified Party is actually entitled to indemnification hereunder) in regard to the Third Party Claim with counsel selected by the Indemnified Party, in all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party. In such circumstances, the Indemnified Party shall defend any such Third Party Claim in good faith and have full control of such defense and proceedings; provided, however, that the Indemnified Party may not enter into any compromise or settlement of such Third Party Claim if indemnification is to be sought hereunder, without the Indemnifying Party’s consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 11.03(c), and the Indemnifying Party shall bear its own costs and expenses with respect to such participation.
(d) An Indemnified Party seeking indemnification in respect of, arising out of or involving a Damage or a claim or demand hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party (a “Direct Claim”) shall deliver a Claim Notice in respect thereof to the Indemnifying Party within 30 days of the date on which the Indemnified Party knows of the Direct Claim, and shall provide the Indemnifying Party with such information with respect thereto as the Indemnifying Party may reasonably request. The failure to deliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Article VIII except to the extent that the Indemnifying Party is materially prejudiced by such failure and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party or otherwise than pursuant to this Article X. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days following its receipt of a Claim Notice in respect of a Direct Claim that the Indemnifying Party disputes its liability to the Indemnified Party hereunder, such Direct Claim specified by the Indemnified Party in such Claim Notice shall be conclusively deemed a liability of the Indemnifying Party hereunder and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party shall pay such lesser amount promptly to the Indemnified Party, without prejudice to or waiver of the Indemnified Party’s claim for the difference. Buyer and Seller hereby covenant and agree that, to the extent there is a disagreement with respect to a Direct Claim, they shall endeavor to negotiate in good faith to arrive at a resolution of such disagreement.
(e) Notwithstanding anything to the contrary contained herein, Seller shall have the sole and absolute right to defend and control the defense of each of the matters set forth on Schedule 4.10, and such right to defend and control shall not be subject to the requirements or limitations otherwise set forth in this Section 10.03 in respect of Third Party Claims.
Appears in 2 contracts
Samples: Asset and Equity Purchase Agreement (Del Frisco's Restaurant Group, Inc.), Asset and Equity Purchase Agreement (Del Frisco's Restaurant Group, Inc.)
Procedures. (a) If any Parent All claims for indemnification under this Article 4.2 shall be asserted and resolved as follows:
4.3.1 The Indemnified Party shall seek indemnification pursuant to Section 7.02(anotify the indemnitor of any claim or demand promptly but in no event later than 15 days after receiving notice thereof specifying the nature and estimated amount of such claim or demand (the "Claim Notice"), or if any Spinco . The indemnitor shall notify the Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification (the “Indemnified Person”) shall give written notice to the Party from whom such indemnification is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) after days of the giving of the Claim Notice whether or not indemnitor desires, at the sole cost and expense of the indemnitor, to defend the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to Party against such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01demand. If the Indemnified Claim arises from the assertion of any claimParty desires to participate in, or the commencement of any Proceeding, brought by a Person that is but not a Parent Company or a Spinco Company (a “Third Party Claim”)control, any such notice defense or settlement, it may do so at its sole cost and expense. If the indemnitor elects not to defend the Indemnified Party against such claim or demand, or fails to respond timely to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the Indemnifying Party will be entitled to assume the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03Notice, the Indemnified Person Party shall have the right to defend defend, compromise and settle such Third Party Claim, subject to the limitations set forth in this Section 7.03, in claim or demand on such manner terms as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to its sole discretion may determine without the prior consent to a settlement of, or of the entry of any judgment arising from, any Third Party Claimsindemnitor, and the indemnitor shall continue bound to indemnify the indemnified party in accordance with the terms of this Article 4.2.1, and the indemnitor shall remain fully liable for any such result or settlement made by the Indemnified Person Party.
4.3.2 If in the reasonable opinion of an Indemnified Party, notice of which shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or be given in writing to the conduct indemnitor, any such claim or demand seeks material injunctive or other similar relief which the Indemnified Party reasonably believes will have a material adverse effect on the assets, liabilities, financial condition, results of that Person’s business, (B) such settlement operations or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf business projects of the Indemnified Person or any of its AffiliatesParty, and (C) such no settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person made thereof without the express prior written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of ParentParty, such consent not to be unreasonably withheld, conditioned withheld or delayed.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Jones Programming Partners 2-a LTD), Asset Purchase Agreement (Jones Programming Partners 1-a LTD)
Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person A party seeking indemnification (the “Indemnified PersonParty”) in respect of, arising out of or involving a Loss or a claim or demand made by any person against the Indemnified Party (a “Third-Party Claim”) shall give written deliver notice (a “Claim Notice”) in respect thereof to the Party from party against whom such indemnification indemnity is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) with reasonable promptness after the receipt by such Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director Party of notice of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Third-Party Claim, state and shall provide the amount of Damages (or if not knownIndemnifying Party with such information with respect thereto as the Indemnifying Party may reasonably request, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which extent such Indemnified Claim arises and demand indemnification thereforinformation is reasonably available. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a)deliver a Claim Notice, or any delay in providing such noticehowever, shall not constitute a waiver release the Indemnifying Party from any of that Person’s claims to indemnification pursuant to Section 7.02, its obligations under this Article VII except to the extent that the Indemnifying Party is materially prejudiced by such failure.
(ib) If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party against any and all Losses that may result from a Third-Party Claim that is exclusively for civil monetary damages at Law pursuant to the terms of this Agreement, the Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 15 days of receipt of a Claim Notice from the Indemnified Party in respect of such failure or delay in giving notice causes Third-Party Claim, to assume the amounts paid or to defense thereof at the expense of the Indemnifying Party (which expenses shall not be paid applied against any indemnity limitation herein) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not be greater than they entitled to assume the defense of any Third-Party Claim that (i) seeks, in addition to or in lieu of monetary damages, any injunctive or other equitable relief, (ii) relates to or arises in connection with any criminal action, indictment, allegation or investigation, (iii) presents, under applicable standards of professional conduct, a conflict on any significant issue between the Indemnified Party and the Indemnifying Party or (iv) involves a material customer, supplier or distributor, and the Indemnified Party shall have the right to defend, at the expense of the Indemnifying Party, any such Third-Party Claim. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party does not expressly elect to assume the defense of such Third-Party Claim within the time period and otherwise would in accordance with the first sentence of this Section 7.4(b), then the Indemnified Party shall have the sole right to assume the defense of and to settle such Third-Party Claim. If the Indemnifying Party assumes the defense of such Third-Party Claim, then the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been or otherwise results specifically authorized in prejudice to writing by the Indemnifying Party or (ii) such notice is not delivered the named parties to the Third-Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to both the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the Indemnifying Party will be entitled to assume the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by Party may present such Indemnified Person in connection therewithcounsel with a conflict of interest. Notwithstanding anything in this Section 7.03 to the contrary, until such time as If the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third any Third-Party Claim, subject to then the limitations set forth in this Section 7.03Indemnified Party shall, in such manner as it may deem appropriate. Without regard to whether at the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives toParty’s expense, cooperate fully with the Indemnifying Party in connection with such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Third-Party Claim, then the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third-Party Claim if such settlement, compromise or judgment (i) involves a finding or admission of wrongdoing, (ii) does not include an unconditional written release by the claimant or plaintiff of the Indemnified Party from all liability in respect of such Third-Party Claim or (iii) imposes equitable remedies or any obligation on the Indemnified Party other than solely the payment of money damages for which the Indemnified Party will be indemnified hereunder.
(c) An Indemnified Party seeking indemnification in respect of, arising out of or involving a Loss or a claim or demand hereunder that does not involve a Third-Party Claim being asserted against or sought to be collected from such Indemnified Party (a “Direct Claim”) shall deliver a Claim Notice in respect thereof to the Indemnifying Party with reasonable promptness after becoming aware of facts supporting such Direct Claim, and shall provide the Indemnifying Party with such information with respect thereto as the Indemnifying Party may reasonably request, to the extent such information is reasonably available. The failure to deliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Article VII except to the extent that the Indemnifying Party is materially prejudiced by such failure and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party or otherwise than pursuant to this Article VII. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party shall be authorized pay such lesser amount promptly to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent Party, without prejudice to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf waiver of the Indemnified Person or any of its Affiliates, and Party’s claim for the difference.
(Cd) such settlement contains as a condition thereto, a complete release The indemnification required hereunder shall be made by prompt payment by the Indemnifying Party of the Indemnified Person. No settlement amount of actual Losses in connection therewith, as and when bills are received by the Indemnifying Party or entry of judgment in respect of any Third Party Claim shall be consented Losses incurred have been notified to by any Indemnified Person without the express written consent of the Indemnifying Party.
(de) If an Indemnifying Party makes any payment on an Indemnified Claim, the The Indemnifying Party shall not be subrogatedentitled to require that any action be made or brought against any other Person before action is brought or claim is made against it hereunder by the Indemnified Party.
(f) Notwithstanding the provisions of Section 9.9, each Indemnifying Party hereby consents to the extent nonexclusive jurisdiction of such payment, to all rights and remedies any court in which an Action in respect of the a Third-Party Claim is brought against any Indemnified Person to Party for purposes of any insurance benefits or other claims or benefits of the claim that an Indemnified Person Party may have under this Agreement with respect to such claim.
(e) Without limiting Action or the provisions of this Section 7.03, it is acknowledged matters alleged therein and agreed agrees that Parent shall defend and control the Third process may be served on each Indemnifying Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayedclaim anywhere.
Appears in 2 contracts
Samples: Asset Purchase Agreement (BOVIE MEDICAL Corp), Asset Purchase Agreement (BOVIE MEDICAL Corp)
Procedures. (a) If any Parent Indemnified Party shall seek Any claim for recovery or indemnification pursuant to Section 7.02(a)8.1 will be made within ten (10) days after discovery of the circumstances underlying such claim in a written statement signed by the Indemnified Party, or if any Spinco which will specify in reasonable detail each Loss suffered by the Indemnified Party shall seek indemnification pursuant to Section 7.02(b)and the estimated amount thereof, the Person seeking indemnification (the “Indemnified Person”) shall give written notice to the Party from whom date such indemnification is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer item was claimed or director of the Indemnified Person) becomes aware of the facts giving rise to such claim were discovered, the basis for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail any alleged liability and the factual basis nature of the Indemnified Claim, state the amount of Damages breach or claim to which each such item is related.
8.2.1 Within ten (or if not known, a good faith estimate of the amount of Damages10) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid days after receipt by the Indemnifying Indemnified Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such hereunder of notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceedingsuch action, such Indemnified Party shall, if a claim in respect thereof is to be made against the Indemnifying Party hereunder, notify the Indemnifying Party in writing thereof requesting indemnification and specifying the basis for which indemnification is sought and the amount of asserted Losses, to the extent then known, but the omission so to notify the Indemnifying Party shall not relieve it from any liability which it may have to such Indemnified Party other than under this Section 8.2 and shall only relieve it from any liability which it may have to such Indemnified Party under this Section 8.2 if and to the extent the Indemnifying Party is prejudiced by such omission. In case any such action shall be brought against any Indemnified Party by a Person that is not a Parent Company or a Spinco Company third party (a “Third "THIRD PARTY CLAIM") and it shall notify the Indemnifying Party Claim”)of the commencement thereof, any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered entitled to participate in and, to the Indemnified Person in connection with such Third Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a)extent it shall wish, the Indemnifying Party will be entitled to assume and undertake the defense and control of such Third Party Claim subject with counsel satisfactory to the provisions of this Section 7.03(b). After written such Indemnified Party, and, after notice by from the Indemnifying Party to the such Indemnified Person Party of its election so to assume and undertake the defense and control of a Third Party Claimthereof, the Indemnifying Party shall not be liable to such Indemnified Person Party under this Section 8.2 for any legal fees or expenses subsequently incurred by such Indemnified Person Party in connection therewith. Notwithstanding anything with the defense thereof; if the Indemnified Party retains its own counsel, then the Indemnified Party shall pay all fees, costs and expenses of such counsel, provided, however, that, if the defendants in this Section 7.03 to any such action include both the contrary, until such time as Indemnified Party and the Indemnifying Party assumes and the defense and control Indemnified Party shall have reasonably concluded that there may be reasonable defenses available to it which are different from or additional to those available to the Indemnifying Party or if the interests of a Third the Indemnified Party Claim as provided in this Section 7.03reasonably may be deemed to conflict with the interests of the Indemnifying Party, the Indemnified Person Party shall have the right to defend select one separate counsel and to assume such Third Party Claim, subject legal defenses and otherwise to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions participate in the defense of such action, with the MSA Matter reasonable expenses and shall consider in good faith the views fees of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree such separate counsel and other expenses related to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not participation to be unreasonably withheld, conditioned or delayedreimbursed by the Indemnifying Party as incurred.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Tidel Technologies Inc), Securities Purchase Agreement (Tidel Technologies Inc)
Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person Any party seeking indemnification under Sections 8.02, 9.02, and 11.02 (the “Indemnified PersonParty”) shall give written prompt notice to the Party from party against whom such indemnification indemnity is sought (the “Indemnifying Party”) promptly (and in of the assertion of any event within 10 days) after Third Party Claim; provided that no delay on the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director part of the Indemnified Person) becomes aware Party in notifying the Indemnifying Party shall relieve the Indemnifying Party of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (any liability or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02obligation hereunder, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have has been or otherwise results prejudiced thereby. The Indemnifying Party may, and at the request of the Indemnified shall, participate in prejudice to and control the defense of any Third Party Claim at its own expense. If the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration assumes control of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion defense of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the Indemnifying Party will be entitled to assume the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person under Sections 8.02, 9.02 and 11.02 for any legal fees or expenses subsequently incurred settlement effected by such the Indemnified Person in connection therewithParty without its consent of any Third Party Claim. Notwithstanding anything in this Section 7.03 to the contraryforegoing, until such time as if the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, and if the Indemnified Person shall have the right to defend such Third Party Claim, subject to the limitations set forth later determines in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the good faith that a Third Party Claim were for is likely to materially adversely affect it or its own account and shall act business in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shalla manner that may not be adequately compensated by the money damages, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and then the Indemnified Person shall consent Party may, by written notice to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) , assume the exclusive right to defend, compromise, or settle such claim. If an the Indemnified Party shall so assume the exclusive right to defend, compromise, or settle such claim, all attorneys’ fees and other expenses incurred by the Indemnified Party in the defense, compromise or settlement of such claim shall be at the Indemnified Party’s expense and shall not be eligible for indemnification from the Indemnifying Party makes any payment on an Indemnified ClaimParty, but the Indemnifying Party shall be subrogated, entitled to be indemnified by the extent Indemnifying Party for the full amount of such payment, to all rights and remedies of any other Damages suffered by the Indemnified Person to any insurance benefits Party as a result of or other claims or benefits arising out of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”)Claim. In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including The party controlling the defense of claims in respect thereof by Mission Support Allianceany third party suit, LLCaction or proceeding shall keep the other party advised of the status of such action, shall consult with Parent regarding any material developments suit or proceeding and decisions in the defense of the MSA Matter thereof and shall consider in good faith recommendations made by the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment other party with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayedthereto.
Appears in 2 contracts
Samples: Asset Purchase Agreement (ClearStory Systems, Inc.), Asset Purchase Agreement (Datawatch Corp)
Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person The party seeking indemnification under Section 7.01 or Section 7.02 (the “Indemnified PersonParty”) shall agrees to give written prompt notice to the Party from party against whom such indemnification indemnity is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceedingsuit, brought by a Person that is not a Parent Company action or a Spinco Company proceeding (a “Third Party Claim”), any ) in respect of which indemnity may be sought hereunder and will provide the Indemnifying Party such notice information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall be accompanied by a copy not relieve the Indemnifying Party of any papers theretofore served on or delivered its obligations hereunder, except to the Indemnified Person in connection with extent such Third Party Claimfailure shall have materially prejudiced the Indemnifying Party.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the The Indemnifying Party will shall be entitled to assume participate in the defense and control of such Third Party any Claim subject to the provisions of this Section 7.03(b). After written notice asserted by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third any third party (“Third-Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim”) and, subject to the limitations set forth in this Section 7.03, if it so notifies the Indemnified Party no later than 30 days after receipt of the notice described in Section 7.03(a), shall be entitled to control and appoint lead counsel for such manner as it may deem appropriatedefense, in each case at its expense. Without regard to whether If the Indemnifying Party or does not, the Indemnified Person is defending and controlling any Party shall have the right to defend or contest such Third Third-Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in Claim through counsel chosen by the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Indemnified Party conducting the defense thereof shall at all times act as if all Damages relating reasonably acceptable to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence Indemnifying Party, subject to minimize Damages therefromthe provisions of this Section 7.03. The Indemnified Person shall, and Party shall cause each of its Affiliates and Representatives to, cooperate fully with provide the Indemnifying Party in connection and such counsel with any Third such information regarding such Third-Party ClaimClaim as either of them may reasonably request (which request may be general or specific).
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to assume the extent of such payment, to all rights and remedies control of the Indemnified Person to defense of any insurance benefits or other claims or benefits of the Indemnified Person Third-Party Claim in accordance with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent (i) the Indemnifying Party shall defend and control obtain the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance prior written consent of the foregoingIndemnified Party (which shall not be unreasonably withheld) before entering into any settlement of such Third-Party Claim, if the Parties acknowledge settlement does not release the Indemnified Party from all liabilities and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments obligations with respect to such Third-Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in (but not control) the defense of such Third-Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third-Party Claim 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 reasonably requested in connection therewith.
(e) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Losses payable under Section 7.01 or Section 7.02.
(f) If any Third Party Claim shall be brought against a member of each Group, then such Action shall be deemed to be a Discover Assumed Action or a Xxxxxx Xxxxxxx Assumed Action in accordance with Article 5, and all Proceedings relating thereto, including the party as to which the Action primarily relates shall be deemed to be the Indemnifying Party for the purposes of this Article 7 and be entitled to control and appoint lead counsel for the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayedAction.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (Discover Financial Services), Separation and Distribution Agreement (Morgan Stanley)
Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification In order for a party (the “Indemnified PersonParty”) to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a Loss or a claim or demand made by any person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall give deliver written notice thereof (a “Claims Notice”) to the Party from party against whom such indemnification indemnity is sought (the “Indemnifying Party”) promptly (and describing in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of reasonable detail the facts giving rise to such claim any claims for indemnification hereunder and shall include in the Claims Notice (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state if then known) the amount or method of Damages (or if not known, a good faith estimate computation of the amount of Damages) such claim and the method of computation thereof, contain a reference to the provision of this Agreement or any agreement, certificate or instrument delivered pursuant to this Agreement upon which such claim is based; provided, that a Claims Notice in respect of a Third Party Claim as to which such Indemnified Claim arises and demand indemnification thereforis sought shall be given promptly after a cause of action is filed in a court of competent jurisdiction. The failure of an by the Indemnified Person Party to provide notice in accordance with this Section 7.03(a)such Claims Notice, or any delay in providing such noticehowever, shall not constitute a waiver release the Indemnifying Party from any of that Person’s claims to indemnification pursuant to Section 7.02its obligations under this Article VIII, except to the extent that the Indemnifying Party is prejudiced thereby, and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party or otherwise than pursuant to this Article VIII. In the event that more than one Seller is an Indemnifying Party hereunder, the Indemnified Party may provide the notices and other communications required pursuant to this Section 8.4 solely to IHR as agent for such other Sellers.
(ib) The Indemnifying Party shall have thirty (30) days from the receipt of the Claims Notice from the Indemnified Party to notify the Indemnified Party whether or not the Indemnifying Party desires, at the Indemnifying Party’s sole cost and expense, to defend the Indemnified Party against such claim or demand; provided, that the Indemnified Party is hereby authorized prior to and during such 30-day period, and at the cost and expense of the Indemnifying Party, to file any motion, answer or other pleading that it shall reasonably deem necessary to protect its interests or those of the Indemnifying Party. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within such failure or delay in giving notice causes 30-day period, to assume the amounts paid or to be paid defense of such Third Party Claim at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. The Indemnifying Party shall be greater than they liable for the reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party does not expressly elect to assume the defense of such Third Party Claim within the 30-day period and otherwise would in accordance with the first sentence of this Section 8.4(b), the Indemnified Party shall have the sole right to assume the defense of and to settle such Third Party Claim in the exercise of its reasonable judgment; provided, however, that the consent of the Indemnifying Party to any settlement, compromise or discharge of such Third Party Claim shall be required if such settlement, compromise or discharge shall result in any liability to, or equitable relief against, the Indemnified Party, which consent shall not be unreasonably withheld. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been or otherwise results specifically authorized in prejudice to writing by the Indemnifying Party or (ii) such notice is not delivered the named parties to the Third Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party prior to of both the expiration Indemnifying Party and such Indemnified Party may present such counsel with a conflict of the applicable survival period set forth in Section 7.01interest. If the Indemnified Claim arises from Indemnifying Party assumes the assertion defense of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any the Indemnified Party shall, at the Indemnifying Party’s expense (such notice expenses not to include costs associated with obtaining and assimilating records of the Target Companies or employee costs, including salary and benefits, associated with the time spent with respect to the defense of such Third Party Claim by employees of the Target Companies) cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party shall be accompanied all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by a copy the Indemnifying Party. If the Indemnifying Party assumes the defense of any papers theretofore served on Third Party Claim, (1) the Indemnifying Party shall not admit any liability with respect to, or delivered settle, compromise or discharge, or offer to compromise, settle or discharge, such Third Party Claim without the Indemnified Person Party’s prior written consent and (2) the Indemnified Party shall consent to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend and that by its terms requires that the Indemnifying Party pay the full amount of the liability in connection therewith, that otherwise releases the Indemnified Party completely and with prejudice in connection with such Third Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the Indemnifying Party will be entitled to assume the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to that would not otherwise adversely affect the Indemnified Person of its election to assume Party. Notwithstanding the defense and control of a Third Party Claimforegoing, the Indemnifying Party shall not be liable entitled to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes assume the defense and control of a any Third Party Claim as provided (and, in this Section 7.03addition to any other Losses, shall be liable for the fees and expenses of counsel incurred by the Indemnified Person shall have the right to defend Party in defending such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as ) if all Damages relating to the Third Party Claim were seeks an order, injunction or other equitable relief or relief for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The other than money damages against the Indemnified Person shallParty, and the Indemnified Party shall cause each of its Affiliates have the sole and Representatives to, cooperate fully with the Indemnifying Party in connection with exclusive right to settle any such Third Party Claim.
(c) The Indemnifying Party shall be authorized Subject to consent to a settlement ofSection 8.5(a), or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment indemnification required hereunder in respect of any a Third Party Claim shall be consented made by prompt payment by the Indemnifying Party of the amount of actual Losses thereof, as and when bills are received by the Indemnifying Party or Losses incurred have been notified to by any Indemnified Person without the express written consent of the Indemnifying Party, together with interest on any amount not repaid as necessary to the Indemnified Party by the Indemnifying Party within ten (10) Business Days after receipt of notice therefor.
(d) If an The Indemnifying Party makes shall not be entitled to require that any payment action be made or brought against any other Person before action is brought or claim is made against it hereunder by the Indemnified Party.
(e) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim with reasonable promptness to the Indemnifying Party. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article VIII except to the extent that the Indemnifying Party is prejudiced by such failure and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party or otherwise than pursuant to this Article VIII. If the Indemnifying Party does not notify the Indemnified Party within sixty (60) days following its receipt of such notice that the Indemnifying Party disputes its liability to the Indemnified Party hereunder, such claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party hereunder and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified ClaimParty, the Indemnifying Party shall be subrogated, pay such lesser amount promptly to the extent of such paymentIndemnified Party, without prejudice to all rights and remedies or waiver of the Indemnified Person Party’s claim for the difference.
(f) Notwithstanding the provisions of Section 10.8, each Indemnifying Party hereby consents to the nonexclusive jurisdiction of any insurance benefits or other claims or benefits court in which an Action in respect of the a Third Party Claim is brought against any Indemnified Person Party for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such claim.
(e) Without limiting Action or the provisions of this Section 7.03, it is acknowledged matters alleged therein and agreed agrees that Parent shall defend and control the Third process may be served on each Indemnifying Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayedclaim anywhere.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Interstate Hotels & Resorts Inc)
Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant Any Person entitled to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification be indemnified under this Article X (the “Indemnified PersonParty”) shall promptly give written notice to the Party from whom such indemnification is may be sought (the “Indemnifying Party”) promptly (and in of any event within 10 days) after pending or threatened Proceeding against the Indemnified Person (or, if the Indemnified Person is a corporation, any officer Party that has given or director of the Indemnified Person) becomes aware of the facts giving would reasonably be expected to give rise to such claim for right of indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference with respect to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company Proceeding (a “Third Party Claim”), indicating, with reasonable specificity, the nature of such Third Party Claim, the basis therefor, a copy of any documentation received from the third party, the amount and calculation of the Covered Losses for which the Indemnified Party is entitled to indemnification under this Article X (and a good faith estimate of any such notice future Covered Losses relating thereto), and the provision(s) of this Agreement in respect of which such Covered Losses shall have occurred, and the Indemnified Party shall promptly deliver to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on information or delivered documentation related to the foregoing reasonably requested by the Indemnifying Party. A failure by the Indemnified Person Party to give notice and to tender the defense of the Proceeding in connection with a timely manner pursuant to this Section 10.4(a) shall not limit the obligations of the Indemnifying Party under this Article X, except to the extent such Third Indemnifying Party Claimis prejudiced thereby.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant With respect to Section 7.03(a), the Indemnifying Party will be entitled to assume the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a any Third Party Claim, the Indemnifying Party under this Article X shall have the right, but not the obligation, to assume the control and defense, at its own expense and by counsel of its own choosing, of such Third Party Claim and any Third Party Claims related to the same or a substantially similar set of facts; provided that the Indemnifying Party shall not be liable entitled to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to assume the contrary, until such time as the Indemnifying Party assumes the control and defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim, subject to and shall pay the limitations set forth in this Section 7.03reasonable fees and expenses of counsel retained by the Indemnified Party, in if such manner as it may deem appropriateThird Party Claim is a criminal Proceeding. Without regard to whether If the Indemnifying Party or the Indemnified Person is defending so undertakes to control and controlling defend any such Third Party Claim, it shall select counsel, contractors, experts and consultants notify the Indemnified Party of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereofits intention to do so, and the Indemnified Party shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party and its counsel in connection with the defense against, and settlement of, any such Third Party Claim.
(c) The ; provided, however, that the Indemnifying Party shall be authorized to consent to a settlement of, or the entry of not settle any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed) unless such settlement does not involve any injunctive relief against or any finding or admission of any violation of Law or wrongdoing by the Indemnified Party, and any money damages are borne solely by the Indemnifying Party. Subject to the foregoing, the Indemnified Party shall have the right to employ separate legal counsel and to participate in but not control the defense of such Proceeding at its own cost and expense; provided that, subject to the provisions of this Article X, the Indemnifying Party shall bear the reasonable fees of one firm of legal counsel (and one additional firm of legal counsel in each jurisdiction implicated in such Proceeding) representing all Indemnified Parties in such Proceeding and all related Proceedings, if, but only if, the defendants in such Proceeding include both an Indemnified Party and the Indemnifying Party, and such Indemnified Party shall have reasonably concluded, based on the advice of legal counsel, that there is a material conflict of interest between the Indemnifying Party and the Indemnified Party with respect to such Proceeding. In any event, the Indemnified Party shall cause its legal counsel to cooperate with the Indemnifying Party and its legal counsel and shall not assert any position in any Proceeding inconsistent with that asserted by the Indemnifying Party. No Indemnified Party may settle any Third Party Claim without the written consent of the Indemnifying Party (not to be unreasonably withheld, conditioned or delayed). If the Indemnifying Party does not assume the control and defense of a Third Party Claim, it shall nevertheless be entitled to participate in the defense of such Proceeding at its own cost and expense, and the Indemnified Party shall cooperate fully with the Indemnifying Party and its counsel in the defense against, and settlement of, any such Third Party Claim.
(c) In the event that any Indemnified Party has or may have an indemnification claim against any Indemnifying Party under this Article X that does not involve a Third Party Claim, the Indemnified Party shall promptly give written notice thereof to the Indemnifying Party indicating, with reasonable specificity, the nature of such claim, the basis therefor, the amount and calculation of the Covered Losses for which the Indemnified Party is entitled to indemnification under this Article X (and a good-faith estimate of any such future Covered Losses relating thereto), and the provision(s) of this Agreement in respect of which such Covered Losses shall have occurred, and the Indemnified Party shall promptly deliver to the Indemnifying Party any information or documentation related to the foregoing reasonably requested by the Indemnifying Party. A failure by the Indemnified Party to give notice in a timely manner pursuant to this Section 10.4(c) shall not limit the obligations of the Indemnifying Party under this Article X, except to the extent such Indemnifying Party is prejudiced thereby. If the Indemnifying Party disputes its liability with respect to such claim, the Indemnifying Party and the Indemnified Party shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations, such dispute shall be resolved by litigation in the appropriate court of competent jurisdiction set forth in Section 11.8.
(d) Notwithstanding the foregoing, if a Third Party Claim includes or would reasonably be expected to include both a claim for Taxes that are Assumed Liabilities pursuant to Section 2.6(e) (“Purchaser Taxes”) and a claim for Taxes that are not Assumed Liabilities pursuant to Section 2.6(e) (“Seller Taxes”), and such claim for Seller Taxes is not separable from such a claim for Purchaser Taxes, Purchaser (if the claim for Purchaser Taxes exceeds or reasonably would be expected to exceed in amount the claim for Seller Taxes) or otherwise Seller (Seller or Purchaser, as the case may be, the “Controlling Party”) shall be entitled to control the defense of such Third Party Claim (such Third Party Claim, a “Tax Claim”). In such case, the other party (Seller or Purchaser, as the case may be, the “Non-Controlling Party”) shall be entitled to participate fully (at the Non-Controlling Party’s sole expense) in the conduct of such Tax Claim and the Controlling Party shall not settle such Tax Claim without the consent of such Non-Controlling Party (which consent shall not be unreasonably withheld, conditioned or delayed). The costs and expenses of conducting the defense of such Tax Claim shall be reasonably apportioned based on the relative amounts of the Tax Claim that are Seller Taxes and that are Purchaser Taxes.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Agios Pharmaceuticals, Inc.)
Procedures. Each Party’s agreement to indemnify, defend, and hold harmless under Section 9.1 or 9.2, as applicable, is conditioned upon the indemnified party (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification (the “Indemnified Person”) shall give providing written notice to the indemnifying Party from whom such indemnification is sought (of any claim, demand or action arising out of the “Indemnifying Party”) promptly (allegedly or actually indemnified matter as soon as reasonably possible, and in any event no later than within 10 daysthirty (30) days after the Indemnified Person indemnified Party has actual knowledge of such claim, demand or action, (orb) permitting the indemnifying Party to assume control over the investigation of, preparation and defense against, and settlement or voluntary disposition of any such claim, demand or action, (c) assisting the indemnifying Party, as reasonably requested by the indemnifying Party and at the indemnifying Party’s reasonable expense, in the investigation, preparation, defense, and settlement or voluntary disposition of any such claim, demand or action, (d) not compromising, settling, or entering into any voluntary disposition of any such claim, demand or action without the indemnifying Party’s prior written consent, which consent shall not be unreasonably withheld, and (e) furnishing promptly to the indemnifying Party copies of all notices and documents (including court papers) received by any indemnified party in connection with the Claim for which indemnification is being sought; provided, however, that, if the Indemnified Person is a corporation, party entitled to indemnification hereunder fails to comply with any officer or director of the Indemnified Person) becomes aware foregoing conditions, the indemnifying Party will only be relieved of the facts giving rise to such claim for its indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of obligation under this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) materially prejudiced by such failure. In no event may the indemnifying Party compromise, settle, or enter into any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion voluntary disposition of any claim, demand or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the Indemnifying Party will be entitled to assume the defense and control of such Third Party Claim action subject to the provisions of indemnification under this Section 7.03(b). After written notice by 9 in any manner that admits material fault or wrongdoing on the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any part of the assets of any Indemnified Person indemnified party or contain any restriction or condition that would apply to such Indemnified Person or to incurs non-indemnified liability on the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf part of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person indemnified party without the express prior written consent of the Indemnifying Party.
(d) If an Indemnifying indemnified party, and in no event may the indemnifying Party makes any payment on an Indemnified Claimsettle, the Indemnifying Party shall be subrogatedcompromise, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement voluntary disposition of any matter subject to indemnification hereunder in any manner which may adversely affect any Cempra Intellectual Property or entry of judgment with respect Cempra’s (or its Affiliates’ or Cempra Licensees’) ability to the MSA Matter (including through any approval of make, use, sell, import, or consent to any action of the MSA joint venture) export Compound, Supplied Derivative, Derivatives, or Products without the express Cempra’s prior written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayedconsent.
Appears in 1 contract
Samples: Api Manufacturing and Supply Agreement (Cempra, Inc.)
Procedures. (a) If any Parent Indemnified Party shall seek Any party(ies) entitled to indemnification pursuant to under Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification 11.02 (the “Indemnified PersonParty”) shall agrees to give written prompt notice to the Party party from whom such the Indemnified Party is entitled to seek indemnification is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceedingsuit, brought action or proceeding in respect of which the Indemnified Party is entitled to seek indemnification under Section 11.02 (it being understood that a party’s entitlement to indemnification shall be determined without regard to the application of (i) the Seller General Basket, Seller Environmental Basket and Buyer Basket (collectively, the “Baskets”) and (ii) the Seller Cap and Buyer Cap (collectively, the “Caps”)) and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) Seller shall control and appoint lead counsel for the defense of any claim asserted by a Person that is not a Parent Company or a Spinco Company any third party (a “Third Party Claim”)) that is an Excluded Liability. In addition, any such notice to the Indemnifying Party shall be accompanied by a copy entitled to control and appoint lead counsel for the defense of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant or any Environmental Matter if (i) it is reasonably expected that indemnification payments to Section 7.03(a), be made by the Indemnifying Party will be entitled to assume the defense and control in respect of such Third Party Claim subject to or Environmental Matter in accordance with Section 11.02 (taking into account the provisions of this Section 7.03(b). After written notice Baskets and the Caps) will be greater than the harm suffered by the Indemnifying Indemnified Party to the Indemnified Person as a result of its election to assume the defense and control of a such Third Party Claim, including any injunctive, equitable or other non-monetary relief sought by such third party, (ii) the Indemnifying Party shall not be liable acknowledge in writing its obligation to indemnify the Indemnified Party for any Damages relating to such Indemnified Person for any legal fees Third Party Claim or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything Environmental Matter (subject to the limitations on indemnification set forth in this Section 7.03 to Article 11, including the contrary, until such time as Baskets and the Caps) and (iii) the Indemnifying Party assumes shall notify the Indemnified Party that it has elected to assume such defense and control promptly but in any event within 30 days after receipt of a the notice with respect to such Third Party Claim as provided referred to in this Section 7.0311.02(a) or, with respect to Environmental Matters, in a timely manner given the facts and circumstances and changes thereto or development thereof over time (it being understood that the Indemnified Person Party shall have the right be entitled to take such actions as may be required to defend such Third Party Claim, subject including if necessary seeking extensions of time to respond to pleadings and the like, prior to the limitations set forth in this Section 7.03, in receipt of such manner as it may deem appropriateacknowledgement within the 30-day period referred to above). Without regard The Indemnified Party shall be entitled to whether control and appoint lead counsel for the defense of any Third Party Claim if the Indemnifying Party is not entitled to, or the Indemnified Person is defending and controlling any such Third Party Claimfails to, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting elect to assume the defense thereof shall at all times act as if all Damages relating of such claim pursuant to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shallforegoing sentence, and shall cause each of its Affiliates and Representatives to, cooperate fully with or thereafter if the Indemnifying Party in connection fails or ceases to prosecute such claim with any Third Party Claimreasonable diligence.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or party controlling the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect defense of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person Environmental Matter in accordance with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 11.03 (the “ASBCA MatterControlling Party”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) (i) shall apply to pay all the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 costs of such defense (the “MSA Matter”including attorneys’ fees), provided that if the Parties acknowledge and agree that Indemnified Party is the Spinco Indemnified Parties Controlling Party, then such costs shall keep Parent reasonably apprised be considered Damages arising out of all developments with respect to such Third Party Claim for purposes of Section 11.02, and all Proceedings relating thereto, including (ii) shall obtain the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express prior written consent of Parentthe other party (the “Non-Controlling Party”) before entering into any settlement of such Third Party Claim or Environmental Matter, such consent not to be unreasonably withheldwithheld (A) if the settlement does not impose injunctive or other equitable relief against the Non-Controlling Party or (B) with respect to Environmental Matters, conditioned if the settlement is consistent with the terms of Section 11.03(g). The Non-Controlling Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Non-Controlling Party, unless in the reasonable judgment of counsel to the Non-Controlling Party there is a conflict of interest between the Controlling Party and the Non-Controlling Party, in which case such fees and expenses shall be paid by the Controlling Party (provided that if the Indemnified Party is the Controlling 77 Party, then such fees and expenses shall be considered Damages arising out of such Third Party Claim for purposes of Section 11.02). In any Third Party Claim where an Indemnified Party is the Non-Controlling Party and which involves any material customer or delayedsupplier of the Indemnified Party or its Affiliates, such participation shall in any event include the right of the Non-Controlling Party to engage in direct discussions with the other parties to such Third Party Claim, including discussions concerning the claim and the potential resolution thereof; provided that (1) such participation right shall not alter the rights of the Controlling Party to control and direct the defense of such Third Party Claim, including the right to reject or accept any resolution proposed by the Non-Controlling Party in such Controlling Party’s sole discretion, and (2) the Non-Controlling Party shall disclose to such other parties that in conducting any such discussions, the Non-Controlling Party is acting on its own behalf and not as a Representative of the Controlling Party and the Non-Controlling Party is not authorized to agree to any settlement with respect to such Third Party Claim. With respect to any Third Party Claim relating to the Specified Matters, the Controlling Party shall retain the legal counsel identified in Section 11.03(c) of the Disclosure Schedule with respect thereto and shall not replace or discharge such counsel absent good cause.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim 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 reasonably requested in connection therewith. In furtherance and not in limitation of the foregoing, in connection with the defense of any Infringement Claim, Buyer shall, to the extent requested by Seller, assert (or, in Buyer’s sole discretion, allow Seller to assert on its behalf) against the Person making such Infringement Claim any claims for infringement or misappropriation of Business Intellectual Property Rights for which there is a reasonable basis in law and fact. A Controlling Party shall, to the extent requested by the Non-Controlling Party, (i) keep the Non-Controlling Party reasonably informed relating to the progress of any significant matter (including providing the Non-Controlling Party with periodic summaries of the status of such Third Party Claim and the amounts spent with respect thereto and copies of all material plans, reports and external correspondence and notifying the Non-Controlling Party of, and giving the Non-Controlling Party the opportunity to attend, scheduled voice or in-person conferences with regulators or other third parties) and (ii) provide the Non-Controlling Party with a reasonable period of time, given the specific circumstances, to permit such party to comment on any material proposed actions, and to consider in good faith any such comments.
(e) Each Indemnified Party must mitigate as required by Applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use its reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 11.02.
(g) In addition to the provisions set forth in Section 11.03(a), 11.03(b), 11.03(c), 11.03(e) and 11.03(f) above, with respect to any matter for which Buyer or its Affiliates seek indemnification relating to a Warranty Breach of Section 3.20, an Excluded Environmental Liability, an Identified Environmental Liability or any other environmental matter otherwise subject to indemnification under the terms of this Agreement (“Environmental Matters”):
(i) Except as set forth in Section 11.03(b), Buyer will retain the defense, control and resolution of any Environmental Matters, including disclosure, investigation, negotiation, performance and settlement of such matters. With respect to any Environmental Matters, the Controlling Party shall, to the extent requested by the Non-Controlling Party, (1) keep the other party reasonably informed relating to the progress of any significant matter (including providing the Non-Controlling Party with copies of all material plans, reports and external correspondence and notifying the other party of, and giving the Non-Controlling Party the opportunity to attend, scheduled voice or in-person conferences with regulators or other third parties), (2) provide the other party with a reasonable period of time, given the specific circumstances, to permit such party to comment on any material proposed actions, and to consider in good faith any such comments and (3) not unreasonably interfere with the ordinary course operation of the business at any Real Property or with the continuing use of the Real Property in the manner being used as of the Closing Date;
(ii) Buyer agrees to, and shall cause its Affiliates to, cooperate with Seller in providing all necessary and reasonably requested access to properties, facilities, employees and records and timely providing Seller with copies of all communications relating to such matter received from any Governmental Authority or third party;
(iii) Each party agrees to cooperate, and to cause their respective Affiliates to cooperate, in the defense or prosecution of any Environmental Matter and shall provide to the other party with copies of any and all material environmental audits, studies, action plans, tests and communications with any Governmental Agency or third party relating to investigatory, remedial or other activities with respect to any property which may be subject to a claim for indemnification for any Environmental Matters;
(iv) Seller’s obligation to indemnify Buyer or any of its Affiliates shall be limited to those Damages which must be incurred, based upon (1) the use of a reasonable and cost-effective method available under the circumstances and (2) the industrial or commercial use of the property as of the Closing Date, to meet, in a reasonably cost-effective manner, the requirements of any applicable Environmental Law or to meet the demands of any applicable Governmental Authority or as required by any judicial or administrative resolution, order or settlement agreement of a Third Party Claim otherwise complying with the terms of this Agreement. To the extent necessary to achieve the purposes set forth in this Section, Buyer and its Affiliates agree that engineering or institutional controls and a deed or other restriction are each a reasonable cost-effective method, so long as such control or restriction does not materially limit the industrial or commercial activities being performed on the applicable property as of the Closing Date.
(v) Seller shall have no liability under this Agreement for any Damages relating to Environmental Matters to the extent arising out of any sampling of the soil or groundwater or any disclosure, report, or communication to any Governmental Authority or third party by Buyer or any of its Affiliates (or by a Third Party Buyer of any Real Property as described in clause (B) below), or out of the initiation or encouragement by Buyer or any of its Affiliates of any action by any Governmental Authority or third party unless:
(A) Buyer or any of its Affiliates reasonably believes it must investigate, take action, initiate or encourage any such action due to (1) the requirements of any applicable law, including any Environmental Law, (2) a need to respond to any Third Party Claim against Buyer or its Affiliates, (3) the discovery of a condition first identified as a result of construction activities which would have been undertaken in the ordinary course of operating the site in the manner in which it is operating as of the Closing Date, in the absence of an indemnity or (4) the discovery of a condition in the ordinary course of operating the site in the manner in which it is operating as of the Closing Date which condition, if unaddressed, would reasonably be expected to result in a material Third Party Claim or imminent and substantial risk to human health;
(B) Buyer or any of its Affiliates reasonably believes that it (or any Third Party Buyer) must investigate, take action, initiate or encourage any such action to meet the demands of a reasonable third party buyer or its financing parties (collectively, “Third Party Buyers”) in connection with the sale of the applicable Real Property to such third party or any other transaction involving the direct or indirect transfer of, or related encumbrance on, the applicable Real Property; provided that the liability of Seller under this Agreement for any Damages for any Environmental Matters triggered by such Third Party Buyer requirement shall be limited to 50% of any Damages incurred by Buyer or its Affiliates, to be determined after the application of the Baskets and Caps; and
(C) Buyer or any of its Affiliates investigates, takes action, initiates or encourages any such action other than as described above, in which case the liability of Seller under this Agreement for any Damages relating to Environmental Matters triggered by such investigation, action, initiation or encouragement shall be limited to 20% of any Damages incurred by Buyer or its Affiliates, to be determined after the application of the Baskets and Caps.
Appears in 1 contract
Samples: Asset and Stock Purchase Agreement
Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person The party seeking indemnification under Section 11.02 (the “Indemnified PersonParty”) shall agrees to give written prompt notice to the Party from party against whom such indemnification indemnity is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claimclaim (whether by a third party or any party hereto), or the commencement of any Proceedingsuit, brought action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section, specifying in reasonable detail the basis and factual background for the Claim and the amount of Damages sought, and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to give such notice will not, however, relieve the Indemnifying Party of any liability hereunder except and only to the extent that it is actually prejudiced thereby.
(b) The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by a Person that is not a Parent Company or a Spinco Company any third party (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the Indemnifying Party will be entitled to assume the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claimand, subject to the limitations set forth in this Section 7.03Section, shall be entitled to control and appoint lead counsel for such defense, in such manner as it may deem appropriate. Without regard to whether each case at its expense.
(c) If the Indemnifying Party or shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 11.03, (i) the Indemnifying Party shall obtain the prior written consent of the Indemnified Person is defending and controlling Party (which shall not be unreasonably withheld) before entering into any settlement of such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in if the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and does not release the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, from all liabilities and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and all Proceedings relating thereto, including (ii) the defense of claims in respect thereof by Mission Support Alliance, LLC, Indemnified Party shall consult with Parent regarding any material developments and decisions be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the MSA Matter Indemnified Party.
(d) Each party shall cooperate, and cause its respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall consider furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco connection therewith.
(e) Each Indemnified Party shall consent use reasonable efforts to collect any amounts available under insurance coverage, or agree to from any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not other Person alleged to be unreasonably withheldresponsible, conditioned or delayedfor any Damages payable under Section 11.02.
Appears in 1 contract
Samples: Stock Purchase Agreement (Harry & David Holdings, Inc.)
Procedures. (a) If 12.3.1 Promptly after the receipt by any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification party (the “"Indemnified Person”Party") of notice of (A) any claim or (B) the commencement of any action, proceeding or litigation (collectively, "Litigation") which may entitle such party to indemnification under this Section, such party shall give the other party (the "Indemnifying Party") written notice to the Party from whom such indemnification is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice or the commencement of such claim or Litigation and shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by permit the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice assume the defense of any such Litigation. The failure to give the Indemnifying Party or (ii) such timely notice is under this clause shall not delivered to preclude the Indemnified Party from seeking indemnification from the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any unless such notice to failure has materially prejudiced the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on Party's ability to defend such claim or delivered to the Indemnified Person in connection with such Third Party ClaimLitigation.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the Indemnifying Party will be entitled to assume the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as 12.3.2 If the Indemnifying Party assumes the defense of any such claim or Litigation with counsel reasonably acceptable to the Indemnified Party, the obligations of the Indemnifying Party as to such claim or Litigation shall be limited to taking all steps necessary in the defense or settlement of such claim or Litigation and control to holding the Indemnified Party harmless from FILING #0001705193 PG 70 OF 193 VOL B-00116 FILED 03/20/1997 03:00 PM PAGE 03436 SECRETARY OF THE STATE CONNECTICUT SECRETARY OF THE STATE and against any losses, damages and liabilities caused by or arising out of a Third any settlement approved by the Indemnifying Party Claim as provided or any judgment in this Section 7.03connection with such claim or Litigation; however, the Indemnified Person Party may participate, at its or his expense, in the defense of such claim or Litigation provided that the Indemnifying Party shall direct and control the defense of such claim or Litigation. The Indemnified Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or Litigation, consent to entry of any judgment, except with the written consent of the Indemnified Party, or enter into any settlement, except with the written consent of the Indemnified Party, which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim or Litigation.
12.3.3 If the Indemnifying Party shall not assume the defense of any such claim or Litigation, the Indemnified Party may, but shall have the right to no obligation to, defend against such Third Party Claim, subject to the limitations set forth in this Section 7.03, claim or Litigation in such manner as it may deem appropriate. Without regard to whether the The Indemnifying Party or shall promptly reimburse the Indemnified Person is defending and controlling any such Third Party Claimfor the amount of all reasonable expenses, it shall select counsellegal or otherwise, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in incurred by the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a the defense against or settlement of, of such claim or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a Litigation. If no settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person claim or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified ClaimLitigation is made, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of promptly reimburse the Indemnified Person to Party for the amount of any insurance benefits or other claims or benefits of the Indemnified Person judgment rendered with respect to such claimclaim or in such Litigation and of all reasonable expenses, legal or otherwise, incurred by the Indemnified Party in the defense against such claim or Litigation.
(e) Without limiting 12.3.4 Regardless of whether the provisions of this Section 7.03, it is acknowledged and agreed that Parent Indemnifying Party shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including have assumed the defense of claims in respect thereof by Mission Support Allianceany such claim or Litigation, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to not admit any settlement or entry of judgment liability with respect to the MSA Matter (including through any approval of to, or consent to any action of the MSA joint venture) settle, compromise or discharge, such claim or Litigation without the express Indemnifying Party's prior written consent of Parent, such (which consent shall not to be unreasonably withheld, conditioned or delayed.). FILING #0001705193 PG 71 OF 193 VOL B-00116 FILED 03/20/1997 03:00 PM PAGE 03437 SECRETARY OF THE STATE CONNECTICUT SECRETARY OF THE STATE SECTION 13 MISCELLANEOUS PROVISIONS
Appears in 1 contract
Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person The party seeking indemnification under Section 11.02 (the “Indemnified Person”"INDEMNIFIED PARTY") shall agrees to give written prompt notice to the Party from party against whom such indemnification indemnity is sought (the “Indemnifying Party”"INDEMNIFYING PARTY") promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceedingsuit, brought by a Person action or proceeding ("CLAIM") in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto that is not a Parent Company or a Spinco Company (a “Third the Indemnifying Party Claim”), any such notice may reasonably request. The failure to so notify the Indemnifying Party shall be accompanied by a copy not relieve the Indemnifying Party of any papers theretofore served on or delivered its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party. Thereafter, the Indemnified Person in connection with such Party shall deliver to the Indemnifying Party, promptly following the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to a Third Party ClaimClaim other than those notices and documents separately addressed to the Indemnifying Party.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the The Indemnifying Party will shall be entitled to assume participate in the defense and control of such Third Party any Claim subject to the provisions of this Section 7.03(b). After written notice asserted by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claimthird party ("THIRD PARTY CLAIM") and, subject to the limitations set forth in this Section 7.03Section, shall be entitled to control and appoint lead counsel for such defense, in such manner as it may deem appropriate. Without regard to whether each case at its expense.
(c) If the Indemnifying Party or shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 11.03, (i) the Indemnifying Party shall obtain the prior written consent of the Indemnified Person is defending and controlling Party (which shall not be unreasonably withheld) before entering into any settlement of such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in if the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and does not release the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, from all liabilities and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and all Proceedings relating thereto, including (ii) the defense of claims in respect thereof by Mission Support Alliance, LLC, Indemnified Party shall consult with Parent regarding any material developments and decisions be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the MSA Matter Indemnified Party. Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent furnish or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not cause to be unreasonably withheldfurnished such records, conditioned information and testimony, and attend such conferences, discovery proceedings, hearings, trials or delayedappeals, as may be reasonably requested in connection therewith.
Appears in 1 contract
Samples: Asset Purchase Agreement (At&t Wireless Services Inc)
Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification In order for a party (the “Indemnified Person”) shall give written notice to the Party from whom such indemnification is sought (the “Indemnifying Party”) promptly (and in to be entitled to any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim indemnification provided for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of under this Agreement in respect of, arising out of which such Indemnified Claim arises and or involving a Loss or a claim or demand indemnification therefor. The failure of an Indemnified made by any third Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If against the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company Party (a “Third Party Claim”), any such Indemnified Party shall deliver notice (a “Claim Notice”) thereof to the Seller or the Buyer, as applicable (the “Indemnifying Party”), with reasonable promptness after receipt by such Indemnified Party of written notice of the Third Party Claim and shall provide the Indemnifying Party with such information with respect thereto as the Indemnifying Party may reasonably request; provided, however, that the failure to provide such notice shall be accompanied by a copy not release the Indemnifying Party from any of any papers theretofore served on or delivered its obligations under this Article IX except to the extent that the Indemnifying Party is materially prejudiced by such failure. The Indemnifying Party shall have 15 days after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Person in connection with Party that it desires to defend the Indemnifying Party against such Third Party Claim.
(b) In the event of receipt of notice of that the Indemnifying Party, within the Notice Period, acknowledges in writing its obligation to indemnify the Indemnified Party against a Third Party Claim from an that is exclusively for civil monetary damages at law, (i) the Indemnifying Party shall have the right to defend the Indemnified Person pursuant Party by appropriate proceedings and shall have the sole power to Section 7.03(adirect and control such defense, with counsel of its choosing, at its expense (which expenses shall not be applied against any indemnity limitation herein); provided, however, that notwithstanding the foregoing, the Indemnifying Party will shall not be entitled to assume the defense of any Third Party Claim (A) for equitable or injunctive relief or that would impose criminal liability or criminal damages, (B) involving a conflict of interest between the Indemnifying Party (or any of its Affiliates) and control the Indemnified Party (or any of its Affiliates), or (C) where the amount of Losses sought exceed the Indemnifying Party’s obligations under this Article IX, (ii) the Indemnifying Party shall use its commercially reasonable efforts to defend diligently such Third Party Claim subject Claim, and (iii) the Indemnified Party, prior to the provisions of this Section 7.03(b). After written notice by period in which the Indemnifying Party assumes the defense of such matter, may take such reasonable actions to preserve any and all rights with respect to such matter, without such actions being construed as a waiver of the Indemnified Person Party’s rights to defense and indemnification pursuant to this Agreement, but with such actions not being determinative of its election to assume the amount of any Losses. If the Indemnifying Party assumes the defense and control of a any Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for enter into any legal fees settlement or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party compromise or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and without the prior written consent of the Indemnified Party if the settlement, compromise or judgment (i) involves a finding or admission of wrongdoing, (ii) does not include an unconditional written release by the claimant or plaintiff of the Indemnified Party from all Proceedings relating theretoliability in respect of such Third Party Claim or (iii) imposes equitable remedies or any obligation on the Indemnified Party other than solely the payment of money damages for which the Indemnified Party will be fully indemnified hereunder.
(c) If the Indemnifying Party (i) does not elect to defend the Indemnified Party against a Third Party Claim, including whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise or (ii) after assuming the defense of claims in respect thereof a Third Party Claim, fails to take commercially reasonable steps necessary to defend diligently such Third Party Claim, the Indemnified Party shall have the right but not the obligation to assume such defense and shall have the sole power to direct and control such defense, with counsel of its choosing, at the expense of the Indemnifying Party; it being understood that the Indemnified Party’s right to indemnification for a Third Party Claim shall not be adversely affected by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in assuming the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Mattersuch Third Party Claim. Neither Spinco nor any Spinco The Indemnified Party shall not settle a Third Party Claim without the consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written Indemnifying Party, which consent of Parent, such consent shall not to be unreasonably withheld, conditioned delayed or delayedconditioned.
(d) The Indemnifying Party and the Indemnified Party shall cooperate in the conduct of the defense of a Third Party Claim, including by providing reasonable access to each other’s relevant business records and other documents, and employees.
(e) The Indemnifying Party and the Indemnified Party shall use commercially reasonable efforts to avoid production of confidential information (consistent with applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(f) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim, the Indemnified Party shall deliver notice of such claim with reasonable promptness to the Indemnifying Party; provided, however, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article IX except to the extent that the Indemnifying Party is materially prejudiced by such failure.
(g) Notwithstanding the foregoing, any payment the Seller is obligated to make to any Indemnified Party pursuant to this Article IX shall be paid first by release of funds to such Indemnified Party from the Escrow Account by the Escrow Agent pursuant to, and in accordance with, the Escrow Agreement. To the extent the Escrow Amount is fully extinguished or insufficient to pay any remaining sums due, then the Seller shall be required to pay to the Indemnified Parties all of such additional sums due or claimed on demand, by wire transfer of immediately available funds.
Appears in 1 contract
Procedures. (a) Any party seeking indemnification under this Article VII (the "Indemnified Party") shall promptly upon becoming aware of the circumstances giving rise to the claim for indemnification, notify the party against whom a claim for indemnification is sought hereunder (the "Indemnifying Party") in writing, which notice shall specify, in reasonable detail, the nature and estimated amount, if determinable, of the claim. Such notification shall be a condition precedent to any liability on the part of the Indemnifying Party. Except as otherwise provided herein, Purchaser and Seller shall appoint Seller or one of Seller's Affiliates, selected by Seller, as attorney in fact with exclusive authority to collect, settle, or pay any amount due to or owed by Seller with respect to an Indemnifiable Tax or for filing any return due or a claim for refund for an Indemnifiable Tax. Such appointment of Seller or its Affiliate as attorney in fact shall be pursuant to a power of attorney in the form set forth in Schedule 7.4(a). Any audit, claim, investigation, administrative proceeding, suit or other action by a third party relating to any Indemnifiable Tax shall be governed by this Section 7.4.
(b) If any Parent third party shall assert a claim against the Indemnified Party with respect to any matter (a "Third Party Claim") for which the Indemnified Party intends to seek indemnification against the Indemnifying Party under this Article VII, then the Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification (the “Indemnified Person”) shall give written notice to the Party from whom such indemnification is sought (the “Indemnifying Party”) promptly (and in any event case within 10 daysten (10) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director days of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification having been asserted) notify the Indemnifying Party thereof in writing (an “Indemnified Claim”to include a description thereof in reasonable detail), which notice notification shall specify in reasonable detail be a condition precedent to any obligation on the factual basis part of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to indemnify the Indemnified Party under this Article VII; provided, that no notice shall be greater than they otherwise would required to be given with respect to any proceedings pertaining to an Indemnifiable Tax which has been assessed or, to Seller's knowledge, is the subject matter of a current audit examination by a taxing authority. The following provisions shall apply with respect to any such Third Party Claim:
(i) The Indemnifying Party shall have been the right to assume the defense of the third party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party (it being understood that if in the Indemnified party's reasonable judgment a conflict of interest is likely to exist between such Indemnified Party or otherwise results in prejudice to the Indemnifying Party or (ii) any of their respective Affiliates with respect to such notice is not delivered counsel, such Indemnified Party shall be entitled to require the Indemnifying Party prior to select other counsel pursuant to this Section 7.4) at any time within 60 days after the expiration Indemnified Party has given notice of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third third Party Claim”); provided, any such notice to however, that (A) the Indemnifying Party shall be accompanied by a copy conduct the defense of the Third Party Claim actively and diligently thereafter in order to preserve its rights in this regard; (B) the Indemnified Party shall have (w) the right to participate fully in the defense of the Third Party Claim, including through separate counsel of its own choosing at its sole cost and expense, (x) the right to receive reasonable advance notice from the Indemnifying Party of any papers theretofore served hearings or proceedings, (y) the right, if possible, to review in advance and comment on any pleadings, briefs or delivered other documents to be filed and (z) the opportunity to participate in any meetings concerning the strategy to be adopted in opposing the Third Party Claim or any efforts to settle the same; and (C) the Indemnified Party shall have the right at any time to assume the sole right to defend or settle any Third Party Claim 50 -48- upon written waiver of its right to indemnity hereunder (in form and substance reasonably satisfactory to the Indemnified Person in connection Indemnifying Party) with respect to such Third Party Claim.
(bii) In So long as the event Indemnifying Party has assumed and is conducting the defense of receipt of notice of a the Third Party Claim from an Indemnified Person pursuant to in accordance with Section 7.03(a)7.4(b)(i) above, the Indemnifying Party will be entitled to assume the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, (A) the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 consent to the contrary, until such time as 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 (x) the judgment or proposed settlement involves only the payment of money damages by the Indemnifying Party assumes and does not impose an injunction or other equitable relief upon the defense Indemnified Party, and control includes the giving by the claimant or the plaintiff to the Indemnified party of a Third Party Claim as provided release from those liabilities which are the subject of the claim for indemnification hereunder in this Section 7.03, form and substance reasonably satisfactory to the Indemnified Person shall have the right Party, or (y) in a matter relating to defend such Third Party Claim, an Indemnifiable Tax subject to the limitations set forth this section 7(4)(b)(ii), is not reasonably likely to materially adversely affect Seller's or Purchaser's liability for Taxes in this Section 7.03a Post-closing Tax Period, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or and (B) the Indemnified Person is defending and controlling Party shall not consent to the entry of any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense judgment or enter into any settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating with respect to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express prior written consent of the Indemnifying Party. With respect to any proposed settlement for an Indemnifiable Tax subject to this Section 7(4)(b)(ii) to which the Purchaser Indemnitee does not consent, Seller may pay the amount of any such proposed settlement to the Purchaser Indemnitee and upon such payment be released from any and all liability to Purchaser Indemnitee with respect to such Indemnifiable Tax.
(diii) If an In the event the Indemnifying Party makes does not assume and conduct the defense of the Third Party Claim in accordance with Section 7.4(b) (i) above, however, (A) the Indemnified Party may defend against, and consent to the entry of any payment on an judgment or enter into any settlement with respect to, the third Party Claim in any manner it reasonably may deem appropriate (and the Indemnified ClaimParty need not consult with, or obtain any consent from, the 51 - 49 - Indemnifying Party in connection therewith) and (B) the Indemnifying Party shall remain obligated to indemnify the Indemnified Party to the extent provided pursuant to this Article VII.
(iv) The Indemnified Party will use all reasonable efforts to make available to the Indemnifying Party those employees whose assistance, testimony or presence is necessary to assist the Indemnifying Party in evaluating and defending any such claim; provided that the Indemnifying Party shall be subrogatedresponsible for any out-of-pocket expenses (excluding wages, benefits, and other direct or indirect costs of employment) associated with any employees made available hereunder. The Indemnified Party, at its expense, shall also make available to the extent of such paymentIndemnifying Party or its representatives on a timely basis all documents, to all rights records and remedies other materials in the possession of the Indemnified Person to Party reasonably required by the Indemnifying Party for its use in defending any insurance benefits or other claims or benefits claim, and shall otherwise cooperate on a timely basis with the Indemnifying Party in the defense of the Indemnified Person with respect to such claim.
(ec) Without limiting Notwithstanding anything herein to the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoingcontrary, the Parties acknowledge failure of an Indemnified Party to notify the Indemnifying Party of any claim of indemnification as required pursuant to Section 7.4(a) or 7.4(b) shall not affect the indemnification obligations of any party hereto, unless and agree only to the extent that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Indemnifying Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayedis prejudiced thereby.
Appears in 1 contract
Samples: Business Purchase Agreement (Fiberite Holdings Inc)
Procedures. (a) If any Parent In order for a Buyer Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Seller Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification (the “Indemnified PersonParty”) to be entitled to any indemnification provided for under this Agreement as a result of a Loss or a claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall give written deliver notice thereof to the Party from party against whom such indemnification indemnity is sought (the “Indemnifying Party”) promptly as soon as reasonably practicable after receipt by such Indemnified Party of written notice of the Third Party Claim, describing (and in any event within 10 days) after to the extent such information is available to the Indemnified Person Party) in reasonable detail (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Personi) becomes aware of the facts giving rise to such claim for indemnification hereunder, (an “Indemnified Claim”), which notice shall specify in reasonable detail ii) the factual basis amount or method of the Indemnified Claim, state computation of the amount of Damages (such claim, or if such information is not knownthen available to the Indemnified Party, a good faith estimate of the amount of Damagessuch claim, (iii) and each individual item of Loss included in the method of computation thereofamount so stated, contain a reference to the provision extent known, (iv) the date such item was paid or properly accrued and (v) the nature of this Agreement in the breach of representation, warranty, covenant or agreement with respect of to which such Indemnified Party claims to be entitled to indemnification hereunder (all of the foregoing, the “Claim arises Information”), and demand indemnification thereforshall provide any other information with respect thereto as the Indemnifying Party may reasonably request. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, however, shall not constitute a waiver release the Indemnifying Party from any of that Person’s claims to indemnification pursuant to Section 7.02, its obligations under this Article VIII except to the extent that the Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, the Indemnifying Party shall retain control following Closing of the defense (iincluding the right to designate legal counsel) of any Action pending as of Closing against the Seller and/or its post-closing Affiliates in connection with the matters described in Section 8.2(c).
(b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such failure or delay Third Party Claim and subject to the Indemnifying Party agreeing to indemnify and hold harmless the Indemnified Party for such Third Party Claim (subject to the limits set forth in giving notice causes this Article VIII), to assume the amounts paid or to be paid defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnified Party. If the Indemnifying Party or (ii) assumes the defense of such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such notice to counsel shall be at the expense of the Indemnified Party; provided, that if in the reasonable opinion of counsel for the Indemnified Party, there is a conflict of interest between the Indemnified Party and the Indemnifying Party, the Indemnifying Party shall be accompanied by a copy responsible for the reasonable fees and expenses of one counsel to such Indemnified Party in connection with such defense. If the Indemnifying Party assumes the defense of any papers theretofore served on or delivered Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party and the Indemnifying Party’s environmental consultants or other professional advisors, all witnesses, pertinent records, materials and information in the Indemnified Person Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party or its environmental consultants or other professional advisors. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim.
(b) In , and which releases the event of receipt of notice of a Indemnified Party completely in connection with such Third Party Claim from an Claim, provided, that such settlement, compromise or discharge (i) does not impose any equitable or other non-monetary remedies or obligations on the Indemnified Party or any of its Affiliates and (ii) does not involve a finding or admission of wrongdoing or any violation of Law or any violation of the rights of any Person pursuant to Section 7.03(a), by the Indemnified Party or any of its Affiliates. Whether or not the Indemnifying Party will be entitled to assume assumes the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the Indemnifying Indemnified Party shall not be liable admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed).
(c) In the event any Indemnified Party assumes the defense and control of should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim as provided in this Section 7.03being asserted against or sought to be collected from such Indemnified Party, the Indemnified Person Party shall deliver notice of such claim containing the Claim Information (to the extent such information is available to the Indemnified Party) as soon as reasonably practicable to the Indemnifying Party, and shall provide any other information with respect thereto as the 55 Indemnifying Party may reasonably request. The Indemnified Party shall reasonably cooperate and assist the Indemnifying Party in determining the validity of any claim for indemnity by the Indemnified Party and in otherwise resolving such matters. Such assistance and cooperation shall include providing reasonable access to and copies of information, records and documents relating to such matters, furnishing employees to assist in the investigation, defense and resolution of such matters (such access to employees shall be during normal business hours, upon reasonable prior notice, under the supervision of the Indemnified Party’s personnel or designees and in such a manner as to not unreasonably interfere with the normal operations of the Indemnified Party) and providing other reasonable assistance with respect to such matters. The failure to provide notice or to follow the procedural provisions set forth herein, however, shall not release the Indemnifying Party from any of its obligations under this Article VIII except to the extent that the Indemnifying Party is prejudiced by such failure.
(d) The Seller shall have the right, upon written notice to the Buyer, to assume operational control for the investigation and remediation of or response to any Seller Environmental Liability only to the extent related to a Contamination Liability as such term is defined herein, including control over the defense of and in any proceeding relating to, any related investigation and remedial measure. The Buyer shall have the right to defend control all actions for any Seller Environmental Liability related to an Environmental Compliance Liability as such Third Party Claimterm is defined herein, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending 8.4(d) and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereofSection 8.5(b)(vii). The Party conducting the defense thereof shall at Seller’s obligations under this Article VIII with respect to all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party Seller Environmental Liabilities shall be authorized limited to consent costs and damages reasonably required to a settlement of, or the entry of any judgment arising from, any Third Party Claims, comply with Environmental Laws using cost-effective and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, commercially reasonable methods to the extent permitted under Environmental Laws, including where appropriate for a Contamination Liability, the use of risk assessments, institutional controls, and deed restrictions consistent with the affected Real Property’s use as an industrial facility and such paymentEnvironmental Laws, provided, that any institutional control, deed restriction or any other restriction or limitation on Real Property that materially affects the Buyer’s operations shall be approved in advance by the Buyer, whose approval will not be unreasonably withheld. For each Contamination Liability for which Seller has assumed operational control, the Seller shall provide the Buyer with the opportunity and a reasonable time period to all rights review in advance and remedies of the Indemnified Person comment on any proposed remedial action plan or regulatory submission related to any insurance benefits indemnified matter and such comments shall be incorporated to the extent they are consistent with Environmental Laws. The Seller shall keep the Buyer apprised of all material developments, including any delays, in Seller’s investigation, remediation of or other claims or benefits of the Indemnified Person with respect response to such claimany Contamination Liability.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments performing its obligations with respect to such Third Party Claim any Contamination Liability, the Seller shall indemnify the Buyer and all Proceedings relating thereto(i) timely complete the environmental investigation and any response activities, including all cleanup and monitoring, required under Environmental Law and use its best efforts to obtain receipt of a no further action letter or other regulatory closure from the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment relevant Governmental Authority with respect to the MSA Matter applicable Seller Environmental Liability (including through any approval of “Regulatory Closure”) based upon the applicable Real Property’s current use as an industrial facility, and (ii) ensure that the completed remedy will not materially and adversely affect the value or consent to any action operation of the MSA joint venture) without the express written consent applicable Real Property in respect of Parent, such consent not to be unreasonably withheld, conditioned or delayedits current uses.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Eaton Corp PLC)
Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person The party seeking indemnification under Section 9.2 (the “Indemnified PersonParty”) shall agrees to give written prompt notice to the Party from party against whom such indemnification indemnity is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceedingsuit, brought by a Person that is not a Parent Company action or a Spinco Company proceeding (a “Third Party Claim”), any ) in respect of which indemnity may be sought under such notice to Section and will provide the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection such information with such Third Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), respect thereto that the Indemnifying Party will be entitled may reasonably request. The failure to assume the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, so notify the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as relieve the Indemnifying Party assumes of its obligations hereunder, except to the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person extent such failure shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of adversely prejudiced the Indemnifying Party.
(db) If an Indemnifying The Indemnified Party makes any payment on an Indemnified Claim, shall obtain the prior written consent of the Indemnifying Party (which shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed) before entering into any settlement of any Claim asserted by any third party (“Third Party Claim”).
(c) Each of Acquirer and Transferor shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim 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 reasonably requested in connection therewith.
(d) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must promptly notify the Indemnifying Party and promptly pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation).
(e) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other person alleged to be responsible, for any Damages payable under Section 9.2. The right to indemnification, payment of Damages or other remedy based on such representations, warranties, covenants, and obligations will not be affected by any investigation conducted with respect to, or any Knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant, or obligation. The waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other remedy based on such representations, warranties, covenants, and obligations.
Appears in 1 contract
Samples: Transfer Agreement (Gigamon Inc.)
Procedures. (a) If any Parent Except with respect to Excluded Business Taxes and Indemnified Party shall seek indemnification pursuant to Taxes (the procedures for which are provided in Section 7.02(a6.3), or if any Spinco Indemnified Party shall seek indemnification pursuant a Person that may be entitled to Section 7.02(b), the Person seeking indemnification be indemnified under this Agreement (the “Indemnified PersonParty”) shall give written notice to promptly notify the Party from whom party or parties liable for such indemnification is sought (the “Indemnifying Party”) promptly (and in writing of any event within 10 days) after pending or threatened claim or demand that the Indemnified Person (or, if the Indemnified Person is a corporation, any officer Party has determined has given or director of the Indemnified Person) becomes aware of the facts giving would reasonably be expected to give rise to such claim for right of indemnification (an including a pending or threatened claim or demand asserted by a third party against the Indemnified Party, such claim being a “Indemnified Third-Party Claim”), which notice shall specify describing in reasonable detail the factual basis facts and circumstances with respect to the subject matter of such claim or demand (to the Indemnified Claim, state extent known) and the amount of Damages Covered Loss (or if not known); provided, a good faith estimate of that the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide such notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver release the Indemnifying Party from any of that Person’s claims to indemnification pursuant to Section 7.02, its obligations under this Article IX except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to is materially prejudiced by such failure (as determined by a court of competent jurisdiction), it being agreed that notices for claims in respect of a breach of a covenant or agreement must be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the any applicable survival period set forth specified in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, 9.1 for such covenant or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claimagreement.
(b) In the event of Upon receipt of a notice of a Third Third-Party Claim for indemnity from an Indemnified Person Party pursuant to Section 7.03(a)9.2 or Section 9.3, the Indemnifying Party will be entitled entitled, by notice to the Indemnified Party delivered within twenty (20) Business Days of the receipt of notice of such Third-Party Claim, to assume the defense and control of such Third Third-Party Claim (at the expense of such Indemnifying Party); provided, that the Indemnifying Party first agrees in writing to indemnify the Indemnified Party for any Covered Losses that may arise therefrom, subject to the provisions of this Section 7.03(b). After written notice by limitations set forth herein; provided, further, that the Indemnifying Party to shall allow the Indemnified Person of its election Party a reasonable opportunity to assume participate in the defense of such Third-Party Claim with its own counsel and control of a Third Party Claimat its own expense. Notwithstanding the foregoing, the Indemnifying Party shall not be liable entitled to such assume or maintain control of the defense of any Third-Party Claim, and shall pay the reasonable fees and expenses of counsel retained by the Indemnified Person for any legal fees Party, if (i) the Third-Party Claim relates to or expenses subsequently incurred by such Indemnified Person arises in connection therewith. Notwithstanding anything in this Section 7.03 to with any criminal proceeding, action, indictment, allegation or investigation, (ii) the contraryThird-Party Claim seeks an injunction or equitable relief against the Indemnified Party or any of its Affiliates that the Indemnified Party reasonably determines, until after conferring with its outside counsel, cannot be separated from any related claim for money damages (it being understood that if such time as equitable relief or other relief portion of the Third-Party Claim can be so separated from that for money damages, the Indemnifying Party assumes shall be entitled to assume the defense only of the portion relating to money damages), (iii) the Indemnifying Party is also a party to such Third-Party Claim, and in the opinion of the Indemnified Party’s outside counsel, a conflict exists between the Indemnifying Party and the Indemnified Party (or there are defenses available to the Indemnified Party that are unavailable to the Indemnifying Party), (iv) such Third Party Claim involves a material customer or material supplier of the Indemnified Party (provided, that, in the case of this clause (iv), if such material customer or material supplier is also a material customer or material supplier the Party prohibited from assuming the defense by this clause (iv), then the Indemnified Party shall obtain such other Party’s prior written consent (not to be unreasonably withheld, conditioned or delayed) prior to making major strategic decisions with respect to such defense), or (v) the Indemnifying Party withdraws from the defense of such Third-Party Claim or fails to vigorously defend such Third-Party Claim (in which case, the Indemnified Party shall be entitled to resume control of the defense of such Third-Party Claim). If the Indemnifying Party does not assume the defense and control of a Third any Third-Party Claim as provided in pursuant to this Section 7.039.4(b), the Indemnified Person Party shall have the right be entitled to defend assume and control such Third Party Claimdefense, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether but the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary may nonetheless participate in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third of such Third-Party Claim were for with its own account counsel and shall act in good faith and with reasonable prudence to minimize Damages therefromat its own expense. The Indemnified Person Purchaser or Seller, as the case may be, shall, and shall cause each of its their respective Affiliates and Representatives to, reasonably cooperate fully with the Indemnifying Party in connection with the defense of any Third Third-Party Claim.
(c) The , including by furnishing books and records, personnel and witnesses, as appropriate for any defense of such Third-Party Claim. If the Indemnifying Party has assumed the defense and control of a Third-Party Claim, it shall be authorized to consent to a settlement or compromise of, or the entry of any judgment arising from, any Third Third-Party ClaimsClaim for which it bears all Covered Losses, in its sole discretion and without the consent of any Indemnified Party; provided, that (A) requires only payment of monetary damages (and, for the avoidance of doubt, does not involve the imposition of any consent order, injunction or decree that would restrict the future activity or conduct of any Indemnified Party, other than customary confidentiality obligations), (B) does not include any finding of violation of Law, admission of wrongdoing, liability or fault or similar by any of the Indemnified Parties and (B) provides for a full and unconditional release of the Indemnified Parties in respect of such Third-Party Claim. Except as expressly provided in the foregoing sentence, the Indemnifying Party shall not admit any liability with respect to, or settle, compromise or discharge any Third-Party Claim without the Indemnified Party’s prior written consent. If the Indemnified Party controls the defense of any Third-Party Claim and proposes to settle such Third-Party Claim prior to a final judgment thereon or to forgo any appeal with respect thereto, then the Indemnified Party shall give the Indemnifying Party prompt written notice thereof and the Indemnifying Party shall have the right to reasonably participate in the settlement of such Third-Party Claim. No Indemnified Person shall Party will consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber or enter into any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as compromise with respect to a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Third-Party Claim shall be consented to by any Indemnified Person without the express prior written consent of the Indemnifying Party.
Party (d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed).
(c) With respect to any claim that is not a Third-Party Claim, (i) the Indemnifying Party shall have thirty (30) days after its receipt of notice described in Section 9.4(a) to respond to the Indemnified Party in writing to any such claim, and (ii) if the Indemnifying Party has disputed its indemnity obligation for any Covered Loss with respect to such claim, the parties shall proceed in good faith to negotiate a resolution of such dispute.
(d) Notwithstanding anything in this Section 9.4 to the contrary, the procedures set forth in this Section 9.4 shall not apply with respect to Excluded Business Taxes and Indemnified Taxes, and the procedures set forth in Section 6.3 shall govern with respect thereto.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Alight, Inc. / Delaware)
Procedures. i. In the event that a Party seeks a recovery in accordance with the terms of this Section 9 (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(athe “Claiming Party”), or if any Spinco Indemnified Party shall seek in respect of an indemnification pursuant to Section 7.02(bclaim (the “Claim”), the Person seeking indemnification Claiming Party shall deliver a written notice (the a “Indemnified PersonClaim Notice”) shall give written notice to the Party from whom such indemnification against which the claim is sought made (the “Indemnifying Party”). Each Claim Notice shall, with respect to each Claim set forth therein, (i) promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail and in good faith the factual basis nature of the Indemnified Claim, Claim being made and (ii) state the aggregate dollar amount of Damages (Losses to which such Claiming Party is claiming to be entitled to indemnification pursuant to this Section 9 that have been incurred, or if not known, a good faith estimate of the aggregate dollar amount of Damages) and such Losses reasonably expected to be incurred, by such Claiming Party pursuant to such Claim (the method of computation thereof, contain a reference “Claim Amount”).
ii. If the Indemnifying Party wishes to object to the provision allowance of this Agreement some or all Claims made in respect of which such Indemnified a Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a)Notice, or any delay in providing such notice, shall not constitute the Indemnifying Party must deliver a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except written objection to the extent that Claiming Party within twenty (i20) any such failure or delay in giving notice causes the amounts paid or to be paid business days after receipt by the Indemnifying Party to be greater than they otherwise would have been or otherwise results of such Claim Notice expressing such objection and explaining in prejudice to reasonable detail and in good faith the basis therefor. Following receipt by the Claiming Party of the Indemnifying Party’s written objection, if any, the Claiming Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to and the Indemnifying Party shall promptly, and within twenty (20) business days, meet to agree on the rights of the respective parties with respect to each Indemnification Claim that is the subject of such written objection. If the Parties should so agree, (i) a memorandum setting forth such agreement shall be accompanied prepared and executed by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Claiming Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), and the Indemnifying Party will be entitled Party, and (ii) with respect to assume the defense any Claim, as promptly as practicable and control within five (5) business days following execution of such Third Party Claim memorandum, subject to the provisions of this Section 7.03(b)9.j. After written notice by and the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claimindemnification limitations described elsewhere in this Agreement, the Indemnifying Party shall not be liable pay to the Claiming Party in cash the aggregate dollar amount of Losses payable to such Indemnified Person for any legal fees Claiming Party. In the event that the Indemnifying and Claiming Parties do not prepare and sign such a memorandum or expenses subsequently incurred such memorandum does not address in full the written objections timely delivered, within twenty (20) business days of receipt by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as Claiming Party from the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to written objection, then the Claiming Party may resolve such Indemnified Person or to the conduct of that Person’s business, dispute in accordance with Section 11.f. (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Samples: Reorganization Agreement (Norcraft Companies, Inc.)
Procedures. For purposes of this Section 7.4, any party with an indemnification obligation under this Article 7 or Section 4.9 shall be referred to herein as an "Indemnifying Party" and any party entitled to indemnification under this Article 7 shall be referred to as an "Indemnified Party". All claims for indemnification by any Indemnified Party hereunder shall be asserted and resolved as set forth in this Section 7.4. In the event that any written claim or demand for which an Indemnifying Party would be liable to any Indemnified Party hereunder is asserted against or sought to be collected from any Indemnified Party by a third party, such Indemnified Party shall promptly, but in no event more than 15 days following such Indemnified Party's receipt of such claim or demand, notify the Indemnifying Party of such claim or demand and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim and demand) (the "Claim Notice"). The Indemnifying Party shall have 30 days from the personal delivery or receipt of the Claim Notice (the "Notice Period") to notify the Indemnified Party (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), whether or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification (the “Indemnified Person”) shall give written notice to the Party from whom such indemnification is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to disputes the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration liability of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the Indemnifying Party will be entitled to assume the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election Party hereunder with respect to assume such claim or demand and (b) whether or not it desires to defend the defense Indemnified Party against such claim or demand. All costs and control of expenses incurred by the Indemnifying Party in defending such claim or demand shall be a Third Party Claimliability of, and shall be paid by, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party ClaimParty, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate7.6 hereof. Without regard to whether In the event that the Indemnifying Party or notifies the Indemnified Person is defending and controlling any such Third Party Claim, within the Notice Period that it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating desires to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and defend the Indemnified Person shall consent to a settlement of, Party against such claim or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, demand and (C) such settlement contains except as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claimhereinafter provided, the Indemnifying Party shall be subrogated, have the right to defend the Indemnified Party (i) by appropriate proceedings and (ii) use or retain counsel in connection with such defense that is reasonably acceptable to the extent Indemnified Party. The Indemnified Party shall make available to the Indemnifying Party all information reasonably available to such Indemnified Party relating to such claim or demand. In addition, the Indemnified Party and the Indemnifying Party shall render to each other such assistance as may reasonably be requested in order to ensure the proper and adequate defense of any such paymentclaim or demand, or to prosecute claims against third parties for contribution or on other theories of recovery related to such claim or demand. The party in charge of the defense shall keep the other party fully apprised at all rights times as to the status of the defense or any settlement negotiations with respect thereto. If any Indemnified Party desires to participate in, but not control, any such defense or settlement it may do so at its sole cost and remedies expense. In the event that the Indemnifying Party does not elect to defend the claim, the Indemnified Party shall not settle a claim or demand without the consent of the Indemnifying Party (which consent will not be unreasonably withheld). The Indemnifying Party shall not, without the prior written consent of the Indemnified Person Party, settle, compromise or offer to settle or compromise any insurance benefits such claim or other claims demand (i) on a basis which would result in the imposition of a consent order, injunction or benefits decree which would restrict the future activity or conduct of the Indemnified Person Party or any subsidiary or Affiliate thereof without the written consent of the Indemnified Party (which consent will not be unreasonably withheld) and (ii) without obtaining (a) a release with respect to such claim.
claim or demand and (eb) Without limiting the provisions dismissal with prejudice of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments any litigation or other proceeding with respect to such Third claim or demand, in each case for the benefit of and in form and substance reasonably satisfactory to the Indemnified Party. If the Indemnifying Party Claim elects not to defend the Indemnified Party against such claim or demand, whether by not giving the Indemnified Party timely notice as provided above or otherwise, then the amount of any such claim or demand, or, if the same be contested by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful (and all Proceedings relating theretothe reasonable costs and expenses pertaining to such defense) shall be the liability of the Indemnifying Party hereunder, including subject to the limitations set forth in Section 7.6 hereof. To the extent the Indemnifying Party shall control or participate in the defense or settlement of claims in respect thereof by Mission Support Allianceany third party claim or demand, LLCthe Indemnified Party will give to the Indemnifying Party and its counsel access to, during normal business hours, the relevant business records and other documents, and shall permit them to consult with Parent regarding any material developments the employees and decisions counsel of the Indemnified Party. The Indemnified Party shall use its commercially reasonable best efforts in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, all such consent not to be unreasonably withheld, conditioned or delayedclaims.
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Procedures. (ai) If After receipt by any Parent Aventis Indemnified Party shall seek indemnification pursuant to Section 7.02(a)or any ViroPharma Indemnified Party, or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification as applicable (the “"Indemnified Person”Party") shall give written notice to the Party from whom such indemnification is sought (the “Indemnifying Party”) promptly (and in of any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand Party will seek indemnification therefor. The failure of an Indemnified Person from the Party required to provide notice in accordance with such indemnification under this Section 7.03(a5 (the "Indemnifiying Party"), or the Indemnified Party must, as a condition to the Indemnified Party's right to indemnification under this Section 5, provide prompt written notice thereof to the Indemnifying Party (the "Claim Notice"); provided that any delay in providing such notice, Claim Notice shall not constitute a waiver of relieve the Indemnifiying Party from any liability that Person’s claims it may have to indemnification pursuant to the Indemnified Party under this Section 7.02, 5 except to the extent that the Indemnified Party is materially prejudiced by such delay. The Claim Notice shall (iA) specify in reasonable detail and in good faith the nature of the claim, (B) specify the amount or in good faith the estimate of the Losses being asserted and (C) state the basis under this Transfer Agreement for seeking such indemnification. In no event (whether or not the Indemnified Party is controlling the defense, compromise or settlement of such claim) will the Indemnified Party admit any responsibility or liability with respect to any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to claim and the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered have no liability to the Indemnified Person in connection Party with respect to such Third claim if the Indemnified Party Claimmakes any such admission.
(bii) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant Subject to Section 7.03(a)5(d)(iii) and Section 5(d)(iv) of this Transfer Agreement, the Indemnifying Party will be entitled to assume may undertake the defense defense, compromise and control settlement of such Third Party Claim subject to the provisions claim by representatives of this Section 7.03(b). After written notice by the Indemnifying Party its own choosing reasonably acceptable to the Indemnified Person Party. The assumption of its election to assume the defense defense, compromise and control settlement of a Third Party Claim, any such claim by the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to an acknowledgment of the contrary, until such time as obligation of the Indemnifying Party assumes the defense and control of a Third to indemnify such Indemnified Party Claim as provided in this Section 7.03, with respect to such claim. If the Indemnified Person Party desires to participate in, but not control, any such defense, compromise and settlement, it may do so at its sole cost and expense. The Indemnified Party shall have the right to defend such Third Party Claimundertake the defense, and, subject to Section 5(d)(iii) and Section 5(d)(iv) of this Transfer Agreement, compromise and settlement of such claim with counsel of its own choosing, and the limitations set forth costs and expenses of the Indemnified Party in this Section 7.03, in such manner connection therewith shall be included as it may deem appropriate. Without regard to whether a part of the indemnification obligations of the Indemnifying Party under this Section 5, unless the Indemnifying Party, within thirty (30) days (or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigationcase of litigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating fifteen (15) days) after written notice of such claim has been given to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and by the Indemnified Person shall consent to a settlement ofParty, or the entry of any judgment arising from, such Third Party Claims, if both: (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or i)expressly acknowledges in writing to the conduct of Indemnified Party that Person’s businessthat, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of as between the Indemnified Person or any of its Affiliates, Party and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogatedsolely obligated to satisfy or discharge the obligations set forth in the Claim Notice, and (ii) takes all reasonable and appropriate steps to affirmatively undertake the extent defense of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(eiii) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that Notwithstanding the provisions of Section 5.02(b5(d)(ii) shall apply of this Transfer Agreement to the ASBCA Matter. With respect extent that (A) any claim or the litigation or resolution thereof (x) seeks an equitable remedy, or (y) is asserted against both the Indemnifying Party and the Indemnified Party and the Indemnified Party reasonably concludes that there are defenses available to Indemnified Party which are different or additional to those of the Third Party Claim described in Schedule A-17 Indemnifying Party, or (B) upon petition by the “MSA Matter”)Indemnified Party, the Parties acknowledge and agree an appropriate court rules that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect Indemnifiying Party failed or is failing to defend such Third Party Claim and all Proceedings relating theretoclaim diligently, including then the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent have the right to control the defense, and subject to Section 5(d)(iv) of this Transfer Agreement, the compromise and settlement of such claim and the costs and expenses of the Indemnifying Party in connection therewith shall be included as part of the indemnification obligations of the Indemnifying Party under this Section 5. If the Indemnified Party elects to exercise such right, then the Indemnifying Party shall have the right to participate in, but not control, the defense, compromise and settlement of such claim at the Indemnifying Party's sole cost and expense.
(iv) Neither the Indemnified Party nor the Indemnifying Party shall settle or agree to compromise any such claim, regardless of whether it is controlling the defense, settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) compromise thereof without the express prior written consent of Parent, such the other (which consent shall not to be unreasonably withheld, conditioned delayed or delayedconditioned).
(v) At the expense of the Indemnifying Party, the Indemnifying Party and the Indemnified Party shall cooperate with and render to each other such assistance as may reasonably be requested in order to insure the proper and adequate defense of any such claim or proceeding which assistance shall include making appropriate personnel reasonably available for any investigation, discovery, hearing or trial.
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Procedures. (a) If any Parent The Purchaser Parties shall promptly notify Seller in writing upon becoming aware of a claim or a possible claim in respect of which a Purchaser Indemnified Party shall may seek indemnification indemnity pursuant to Section 7.02(a)this Agreement (including a claim or possible claim by a third party against a Purchaser Indemnified Party, or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification (the “Indemnified Person”) shall give written notice to the Party from whom such indemnification is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an or possible claim by a third party being a “Indemnified Third-Party Claim”), which notice shall specify describing in reasonable detail the factual basis facts and circumstances then known by the Purchaser Indemnified Party with respect to the subject matter of such claim or demand and, if known, the Indemnified Claim, state the amount of Damages Losses that are expected to be (or if not known, reasonably could be) incurred or suffered as a good faith estimate of result thereof; provided that the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide such notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver release Seller from any of that Person’s claims to indemnification pursuant to Section 7.02its obligations under this Article IX, except to the extent that (i) any Seller suffers actual loss or prejudice as a result of such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claimdelay.
(b) In Except as provided in Section 9.4(d), in the event of receipt of notice that a Purchaser Party notifies Seller of a Third Party Claim from an Indemnified Person potential indemnification claim pursuant to Section 7.03(a), the Indemnifying Party will be entitled to assume the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control 9.4(a) in respect of a Third Third-Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person Seller shall have the right, at its election, to participate in (but not control or otherwise direct) the defense of such Third-Party Claim with its own counsel and at its own cost and expense. For the avoidance of doubt, Parent shall have the sole, absolute and exclusive right to defend such Third control and direct the defense of all Third-Party Claim, subject to the limitations set forth Claims in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending its sole and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereofabsolute discretion, and shall diligently have the sole, absolute and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating exclusive right to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shallenter into settlement or compromise, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to or consent to a settlement of, or the entry of any judgment arising fromJudgment with respect to, any Third all Third-Party Claims, and Claims without the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement Seller; provided that Parent shall not encumber settle or compromise any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third indemnifiable Third-Party Claim shall be consented to by any Indemnified Person (notwithstanding whether the aggregate Losses at such time have reached or exceeded the Special Indemnity Cap) without the express prior written consent of the Indemnifying Party.
Seller (d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed) if the terms or such settlement or compromise would adversely affect Seller’s reputation or its business or operations, contemplate an admission of wrongdoing by Seller or would be binding on Seller’s business and operations.
(c) Subject to the Special Indemnity Cap, Seller shall not contest, and shall promptly pay, any indemnification claim by a Purchaser Indemnified Party for documented attorneys’ fees and expenses actually incurred in respect of any individual Special Indemnity Matter if and to the extent that such fees do not exceed $1,000,000 in the aggregate. For the avoidance of doubt, (i) any attorneys’ fees and expenses payable in connection with the foregoing shall count towards the Special Indemnity Cap and (ii) shall not limit or otherwise restrict the rights of the Purchaser Indemnified Parties to receive indemnification for attorneys’ fees and expenses in excess of $1,000,000, subject to the Special Indemnity Cap and the indemnification provisions of this Article IX.
(d) Notwithstanding anything to the contrary in this Agreement (including Section 9.4(b)), Seller shall have the exclusive right to control in all respects, and neither the Purchaser Parties nor any of their Affiliates shall be entitled to participate in, any Tax Proceeding with respect to (i) any Tax Return of Seller or any of its Affiliates or (ii) any other Taxes for which Seller is responsible pursuant to this Agreement.
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Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification In order for a party (the “Indemnified Personindemnified party”) shall give written notice to the Party from whom such be entitled to any indemnification is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim provided for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of under this Agreement in respect of, arising out of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified or involving a claim made by any Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to against the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company indemnified party (a “Third Party Claim”), any such indemnified party must promptly notify the indemnifying party (the “indemnifying party”) in writing (and in reasonable detail) of the Third Party Claim after receipt by such indemnified party of notice of the Third Party Claim; provided, that failure to give such notification shall not affect the indemnification provided hereunder except to the Indemnifying Party extent the indemnifying party shall be accompanied by have been actually prejudiced in the defense of such claim as a copy result of any papers theretofore served on or delivered such failure. Thereafter, the indemnified party shall deliver to the Indemnified Person in connection with such indemnifying party, within five business days’ time after the indemnified party’s receipt thereof, copies of all notices and documents (including court papers) received by the indemnified party relating to the Third Party Claim.
(b) In If a Third Party Claim is made against an indemnified party, the event indemnifying party shall be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof (exercisable by written notice to Purchaser or the Seller, as applicable, within 60 days of receipt of notice of the Third Party Claim from Purchaser or the Seller, as applicable) with counsel selected by the indemnifying party and reasonably acceptable to the indemnified party. The indemnifying party’s right to assume the defense of a Third Party Claim from (other than a Third Party Claim relating to an Indemnified Person pursuant Excluded Liability in the case of the Seller or an Assumed Liability in the case of Purchaser) shall be subject to Section 7.03(athe following conditions: (i) the claim involves (and continues to involve) solely monetary damages; (ii) the claim is not, in the reasonable judgment of the indemnified party, likely to result in an aggregate liability that will exceed the then remaining amount of the Maximum; (iii) the indemnifying party expressly agrees in writing with the indemnified party that, as between the two, the indemnifying party is solely obligated to satisfy and discharge the claim, subject to the Basket and the Maximum, to the extent applicable, and (iv) the claim does not relate to or arise in connection with any criminal or quasi-criminal allegation, proceeding, action, indictment or investigation. If the indemnifying party does not assume control of the defense of such claim within the period of time required or, after assuming such control, the indemnifying party fails to diligently defend against such claim in good faith (it being understood that settlement of such claim does not constitute such a failure to defend), the Indemnifying Party will be entitled indemnified party shall have the right to defend and settle such claim. Should the indemnifying party so elect to assume the defense of and control of continue to be entitled to defend such Third Party Claim subject Claim, the indemnifying party shall not be liable to the provisions indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense and continue to be entitled to defend such Third Party Claim, the indemnified party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of this Section 7.03(bcounsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof or lost the right to continue such defense hereunder (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above). After written notice by Each party shall cooperate in the Indemnifying defense of a Third Party Claim. Such cooperation shall include the retention and (upon the indemnifying party’s request) the provision to the Indemnified Person indemnifying party of its election records and information that are reasonably relevant to assume such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party assumes the defense and control of a Third Party Claim, the Indemnifying 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 liable to such Indemnified Person for any legal fees unreasonably withheld or expenses subsequently incurred by such Indemnified Person in connection therewithdelayed). Notwithstanding anything in this Section 7.03 to If the contrary, until such time as the Indemnifying Party indemnifying party assumes the defense and control of a Third Party Claim, the indemnified party shall agree to any settlement, compromise or discharge of a Third Party Claim as provided that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in this Section 7.03, the Indemnified Person shall have the right to defend connection with such Third Party Claim, subject to which releases the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party indemnified party completely in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including that would not otherwise materially adversely affect the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayedindemnified party.
Appears in 1 contract
Samples: Asset Purchase Agreement (Church & Dwight Co Inc /De/)
Procedures. (a) If any Parent Indemnified Party shall seek A party seeking indemnification pursuant to Section 7.02(a), Sections 11.2 or if any Spinco 11.3 (an "Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification (the “Indemnified Person”Party") shall give written prompt notice to the Party party from whom such indemnification is sought (the “"Indemnifying Party”") promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claimclaim or assessment, or the commencement of any Proceedingaction, brought suit, audit or proceeding, by a Person that is not a Parent Company or a Spinco Company third party in respect of which indemnity may be sought hereunder (a “"Third Party Claim”)") and will give the Indemnifying Party such information with respect thereto as the Indemnifying Party may reasonably request, any but no failure to give such notice shall relieve the Indemnifying Party of any liability hereunder (except to the extent the Indemnifying Party has suffered actual prejudice thereby). Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, but in no event more than five (5) business days after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. The Indemnifying Party shall have the right, exercisable by written notice (the "Notice") to the Indemnified Party within ten (10) days of receipt of notice from the Indemnified Party of the commencement of or assertion of any Third Party Claim, to assume the defense of such Third Party Claim, using counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party provided that: (a) the Indemnifying Party shall be accompanied not by a copy this provision permit to exist any lien, encumbrance, or other adverse charge upon any asset of any papers theretofore served on Indemnified Party nor shall Sellers, as Indemnifying Party(s), settle or delivered pursue any matter reasonably likely to materially impact the Indemnified Person in connection with such Third Party Claim.business of PDI or SE Business without the prior written consent of Buyer;
(b) In the event of receipt of notice of a Third Party Claim from third party is seeking only monetary relief and does not seek an Indemnified Person pursuant to Section 7.03(a), injunction or other equitable relief;
(c) the Indemnifying Party will shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by the Indemnifying Party, provided that the fees and expenses of such counsel shall be entitled borne by the Indemnifying Party;
(d) the Indemnifying Party shall agree, without reservation, within ten (10) days of receiving notice of the claim to reimburse the Indemnified Party for the full amount of any loss resulting from such claim and all related expense incurred by the Indemnified Party pursuant to this Article XI and provides evidence, reasonably satisfactory to the Indemnified Party that the Indemnifying Party has the financial resources to defend against such claim and to fulfill the indemnification obligations with respect thereto; and
(e) the Indemnifying Party is reasonably contesting such claim in good faith. Should the Indemnifying Party so elect to assume the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall will not be liable to such the Indemnified Person Party for any legal fees or expenses subsequently incurred by such the Indemnified Person Party in connection therewithwith the defense thereof. Notwithstanding anything in this Section 7.03 to the contrary, until such time as If the Indemnifying Party assumes shall fail to assume the defense and control of a the Third Party Claim as provided in this Section 7.03within such ten (10) day period, the Indemnified Person Party shall have the right to defend undertake the defense of such Third Party Claim, subject to Claim on behalf of the limitations set forth in this Section 7.03, in such manner as it may deem appropriateIndemnifying Party and at the expense of the Indemnifying Party. Without regard to Regardless of whether the Indemnifying Party or elects to assume the Indemnified Person is defending and controlling defense of any such Third Party Claim, it the Indemnified Party shall select counselnot admit any liability with respect to, contractorsor settle, experts and consultants of recognized standing and competencecompromise or discharge, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the such Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with without the Indemnifying Party in connection with any Third Party ClaimParty's prior written consent which shall not be unreasonably withheld or delayed.
(cf) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of Indemnified Party, as the case may be, shall in any judgment arising fromevent have the right to participate, any Third Party Claimsat its own expense, and in the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect defense of any Third Party Claim shall be consented to by any Indemnified Person without which the express written consent of the Indemnifying Partyother is defending.
(dg) If an The Indemnifying Party, if it shall have assumed the defense of any Third Party Claim in accordance with the terms hereof, shall have the right, upon five (5) days prior written notice to the Indemnified Party, to consent to the entry of judgment with respect to, or otherwise settle such Third Party Claim provided the third party is seeking only monetary relief and the Indemnifying Party makes any payment on an agrees that as between the Indemnifying Party and the Indemnified ClaimParty, the Indemnifying Party shall be subrogated, solely obligated to the extent of satisfy and discharge such payment, to all rights and remedies of the Indemnified Person to any insurance benefits judgment or other claims or benefits of the Indemnified Person with respect to such claim.settlement. If
(ei) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described involves equitable or other non-monetary damages or (ii) in Schedule A-17 the reasonable judgment of the Indemnified Party such settlement would have a continuing material adverse effect on the Indemnified Party's business (the “MSA Matter”including any material impairment of its relationships with customers and suppliers), in which case such settlement only may be made with the Parties acknowledge written consent of the Indemnified Party, which consent may be granted or withheld in the sole discretion of the Indemnified Party.
(h) Whether or not the Indemnifying Party chooses to defend or prosecute any claim involving a third party, all the parties hereto shall cooperate in the defense or prosecution thereof and agree that shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection therewith. Such cooperation shall include access during normal business hours afforded to the Spinco Indemnified Parties shall keep Parent Indemnifying Party to, and reasonable retention by the Indemnifying Party of, records and information which are reasonably apprised of all developments with respect relevant to such Third Party Claim Claim, and all Proceedings relating thereto, including the defense making employees available on a mutually convenient basis to provide additional information and explanation of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments provided hereunder, and decisions in the defense of Indemnifying Party shall reimburse the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayedfor all its reasonable out-of-pocket expenses in connection therewith.
Appears in 1 contract
Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification In order for a party (the “Indemnified Person”) shall give written notice to the Party from whom such indemnification is sought (the “Indemnifying Party”) promptly (and in to be entitled to any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim indemnification provided for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of under this Agreement in respect of, arising out of which such Indemnified Claim arises and or involving a Loss or a claim or demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or made by any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If person against the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company Party (a “Third Party Claim”), any such Indemnified Party shall deliver notice thereof to the Stockholder Representative, on behalf of the Stockholders, or to the Parent, as applicable (the “Indemnifying Party”) with reasonable promptness after receipt by such Indemnified Party of written notice of the Third Party Claim and shall provide the Indemnifying Party with such information with respect thereto as the Indemnifying Party may reasonably request. The failure to provide such notice, however, shall be accompanied by a copy not release the Indemnifying Party from any of any papers theretofore served on or delivered its obligations under this Article VII except to the Indemnified Person in connection with extent that the Indemnifying Party is materially prejudiced by such Third Party Claimfailure.
(b) In If the event Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party against any and all Losses that may result from a Third Party Claim pursuant to the terms of this Agreement, the Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 15 calendar days of receipt of notice from the Indemnified Party of a the commencement of such Third Party Claim from an Indemnified Person pursuant to Section 7.03(a)Claim, the Indemnifying Party will be entitled to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and control satisfactory to the Indemnified Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party does not expressly elect to assume the defense of such Third Party Claim subject to within the provisions time period and otherwise in accordance with the first sentence of this Section 7.03(b7.5(b). After written notice by the Indemnifying Party to , the Indemnified Person of its election Party shall have the sole right to assume the defense of and to settle such Third Party Claim. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party, (ii) the named parties to the Third Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the Indemnifying Party and such Indemnified Party may present such counsel with a conflict of interest, or (iii) the Indemnifying Party is not defending such Third Party Claim in good faith. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall, at the Indemnifying Party’s expense, cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of a any Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to not, without the contrary, until such time as the Indemnifying Party assumes the defense and control prior written consent of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party ClaimParty, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party enter into any settlement or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense compromise or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating theretoif such settlement, including compromise or judgment (i) involves a finding or admission of wrongdoing, (ii) does not include an unconditional written release by the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense claimant or plaintiff of the MSA Matter and shall consider in good faith the views of Parent Indemnified Party from all liability in respect of such Third Party Claim or (iii) imposes equitable remedies or any obligation on the MSA Matter. Neither Spinco nor Indemnified Party other than solely the payment of money damages for which the Indemnified Party will be indemnified hereunder.
(c) Subject to Section 7.7(a), the indemnification required hereunder in respect of a Third Party Claim shall be made by prompt payment by the Indemnifying Party of the amount of actual Losses in connection therewith, as and when bills are received by the Indemnifying Party or Losses incurred have been notified to the Indemnifying Party, together with interest on any Spinco amount not repaid as necessary to the Indemnified Party by the Indemnifying Party within five Business Days after receipt of notice of such Losses, from the date such Losses have been notified to the Indemnifying Party, at the rate of interest described in Section 2.11(e).
(d) The Indemnifying Party shall not be entitled to require that any action be made or brought against any other Person before action is brought or claim is made against it hereunder by the Indemnified Party.
(e) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall consent deliver notice of such claim with reasonable promptness to the Indemnifying Party. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article VII except to the extent that the Indemnifying Party is materially prejudiced by such failure and shall not relieve the Indemnifying Party from any other obligation or agree liability that it may have to the Indemnified Party or otherwise than pursuant to this Article VII. If the Indemnifying Party does not notify the Indemnified Party within 10 Business Days following its receipt of such notice that the Indemnifying Party disputes its liability to the Indemnified Party hereunder, such claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party hereunder and, subject to Section 7.7(a), the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party shall, subject to Section 7.7(a), pay such lesser amount promptly to the Indemnified Party, without prejudice to or waiver of the Indemnified Party’s claim for the difference.
(f) Notwithstanding the provisions of Section 9.10, each Indemnifying Party hereby consents to the nonexclusive jurisdiction of any settlement or entry court in which an Action in respect of judgment a Third Party Claim is brought against any Indemnified Party for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Action or the MSA Matter (including through any approval of or consent matters alleged therein and agrees that process may be served on each Indemnifying Party with respect to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayedclaim anywhere.
Appears in 1 contract
Samples: Merger Agreement (I Flow Corp /De/)
Procedures. Claims for indemnification under this Agreement shall only be asserted and resolved as follows:
(a) If any Parent Any Buyer Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Seller Indemnified Party shall seek claiming indemnification pursuant to Section 7.02(b), the Person seeking indemnification under this Agreement (the an “Indemnified PersonParty”) with respect to any claim asserted against the Indemnified Party by a third party (a “Third Party Claim”) in respect of any matter that is subject to indemnification under Section 9.02 or Section 9.03 shall give written (i) promptly (but no later than twenty (20) days after receiving notice to of such Third Party Claim) notify in writing the other Party from whom such indemnification is sought (the “Indemnifying Party”) of such Third Party Claim and (ii) promptly transmit to the Indemnifying Party a written notice (and in any event within 10 daysa “Claim Notice”) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify describing in reasonable detail the factual basis facts and circumstances with respect to the subject matter of such Third Party Claim, including the nature, basis, the amount thereof (to the extent known or estimated, which amount shall not be conclusive of the Indemnified Claim, state the final amount of Damages (or if not knownsuch Third Party Claim), a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference thereof (to the provision extent known or estimated), any other remedy sought thereunder, any relevant time constraints relating thereto, and, to the extent practicable, any other material details pertaining thereto, along with copies of this Agreement in respect of which the relevant documents evidencing such Indemnified Third Party Claim arises and demand the basis for indemnification thereforsought. The failure of an Indemnified Person Failure to provide notice notify the Indemnifying Party in accordance with this Section 7.03(a), or 9.05(a) will not relieve the Indemnifying Party of any delay in providing such notice, shall not constitute a waiver of Liability that Person’s claims it may have to indemnification pursuant to Section 7.02the Indemnified Party under this Article IX, except to the extent that (i1) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party is actually and materially prejudiced by the Indemnified Party’s failure to be greater than they otherwise would have been give such notice or otherwise results in prejudice (2) the Indemnified Party fails to notify the Indemnifying Party or (iiof such Third Party Claim in accordance with this Section 9.05(a) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party ClaimSurvival Expiration Date.
(b) In the event of Upon receipt of a written notice of a Third Party Claim claim for indemnification or reimbursement from an Indemnified Person Party pursuant to Section 7.03(a), the Indemnifying Party will be entitled 9.05(a) with respect to assume the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a any Third Party Claim, the Indemnifying Party shall have the right (but not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person the obligation), after giving notice in connection therewith. Notwithstanding anything in this Section 7.03 writing to the contraryIndemnified Party as soon as reasonably practicable (and in any event within fifteen (15) Business Days of the receipt of the Claim Notice) that such Third Party Claim, until such time as if sustained, would be indemnifiable by the Indemnifying Party assumes pursuant to this Agreement, to assume, at its sole cost and expense, the defense and control of a any Third Party Claim as provided and, in this Section 7.03the event that the Indemnifying Party shall assume the defense of such claim, the Indemnified Person Party shall have the right (but not the obligation) to defend participate in (but not direct or control) the defense of such Third Party Claim with its own counsel and at its own expense; provided, however, that, so long as it is finally determined that the Indemnifying Party is required to indemnify the Indemnified Party for all Damages arising from such Third Party Claim to the extent provided for hereunder, the Indemnifying Party shall bear the reasonable fees, costs and expenses of such separate counsel if: (i) the Indemnified Party shall have received written advice from outside counsel (which need not be in the form of a formal written opinion of such counsel and which may be in the form of an indication by email of such counsel’s advice) that a conflict of interest makes representation by the same counsel inappropriate or that one or more defenses are available to the Indemnified Party that are not available to the Indemnifying Party; or (ii) the Indemnifying Party shall have authorized the Indemnified Party in writing to employ separate counsel at the Indemnifying Party’s expense. If it is finally determined that the Indemnifying Party is required to indemnify the Indemnified Party for all Damages arising from such Third Party Claim to the extent provided for hereunder, the reasonable, documented out-of-pocket fees, costs and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof (including, for the avoidance of doubt, the reasonable and documented fees and expenses of the separate counsel employed by the Indemnified Party incurred between the date the Indemnified Party provides the Indemnifying Party with the Claim Notice and the date the Indemnifying Party assumes control of such defense) shall be taken into account in determining the indemnifiable Damages arising from such Third Party Claim, subject to . The Person that shall control the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending and controlling defense of any such Third Party Claim, it Claim (the “Controlling Party”) shall (i) select counsel, contractors, experts contractors and consultants of recognized standing and competence, shall in each case, reasonably satisfactory to the non-Controlling Party (be it Buyer or Seller), (ii) take reasonable all steps reasonably necessary in the investigation, defense or settlement thereof, of such Third Party Claim and shall diligently and promptly pursue (iii) keep the resolution thereof. The non-Controlling Party conducting the defense thereof shall at all times act as if all Damages reasonably informed relating to the progress of such defense (including providing the non-Controlling Party with copies of all material information under the Controlling Party’s control reasonably relevant to such Third Party Claim were for its own account and on a reasonably prompt basis). Notwithstanding the foregoing, the Indemnifying Party shall act in good faith and with reasonable prudence not have the right to minimize Damages therefrom. The Indemnified Person assume the defense of any Third Party Claim: (i) involving a criminal claim or regulatory enforcement action; or (ii) involving relief other than monetary damages.
(c) Seller or Buyer, as the case may be, shall, and shall cause each of its Affiliates and Representatives to, reasonably cooperate fully with the Indemnifying Controlling Party in connection with the defense of any Third Party Claim. If it is finally determined that the Indemnifying Party is required to indemnify the Indemnified Party for all Damages arising from such Third Party Claim to the extent provided hereunder, then the reasonable, documented out-of-pocket costs and expenses incurred in connection with such reasonable cooperation shall be taken into account in determining the indemnifiable Damages arising from such Third Party Claim. The Controlling Party shall take commercially reasonable measures (which measures shall be at least substantially comparable to measures employed by the Controlling Party with respect to its own materials following the Closing) designed to preserve attorney-client privilege or attorney work-product immunity to the extent then existing in respect of any and all materials provided to the Controlling Party by the non-Controlling Party under this Section 9.05(c).
(cd) The If the Indemnifying Party has assumed the defense of any Third Party Claim, the Indemnifying Party shall not, without the prior written consent of the Indemnified Party (which consent shall not be authorized to unreasonably withheld, conditioned or delayed), consent to a settlement ofsettlement, compromise or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement discharge of, or the entry of any judgment arising from, such Third Party ClaimsClaim unless (i) such settlement, if compromise, discharge or entry of any judgment (A) such settlement shall does not involve any finding or admission of any violation of Law or wrongdoing by or on behalf of the Indemnified Party and does not include a statement or admission of fault, culpability or failure to act by or on behalf of the Indemnified Party, (B) does not subject the Indemnified Party to any injunctive relief or other equitable remedy, criminal penalties or other obligation on any Indemnified Party other than the payment of monetary damages for which each Indemnified Party will be indemnified to the extent provided for hereunder and does not encumber any asset (unless immaterial) of the assets of any Indemnified Person Party or contain result in any restriction or condition that would apply to such and materially adversely affect the Indemnified Person Party or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, Party’s business and (C) provides for a complete and unconditional release of the claims that are the subject of such Third Party Claim in favor of the Indemnified Party with prejudice, and (ii) the Indemnifying Party shall: (A) pay or cause to be paid all amounts arising out of such settlement contains or judgment to the extent provided for hereunder concurrently with the effectiveness of such settlement or judgment (unless otherwise provided in such judgment and, in such case, in accordance with such judgment); and (B) obtain, as a condition theretoof any settlement, compromise, discharge, entry of judgment (if applicable) or other resolution, a complete and unconditional release of the Indemnified Person. No settlement or entry of judgment Party from any and all liabilities in respect of such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, no Indemnified Party shall admit any liability with respect to, or settle, compromise or discharge, or consent to the entry of any judgment with respect to, any Third Party Claim shall be consented to by any Indemnified Person without the express Indemnifying Party’s prior written consent.
(e) If the Indemnifying Party elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or by notifying in writing the Indemnified Party that it elects not to defend, then the Indemnified Party shall have the right (but not the obligation) to assume its own defense at its sole cost and expense, but in such case, without in any way waiving or otherwise affecting the Indemnified Party’s rights to indemnification pursuant to this Agreement; provided, however, that (i) the Indemnified Party shall not, without the prior written consent of the Indemnifying Party.
, consent to a settlement, compromise or discharge of, or the entry of any judgment arising from, such Third Party Claim and (dii) If an if at any time the Indemnifying Party makes any payment on an Indemnified Claimagrees in writing to indemnify all Damages arising from such Third Party Claim to the extent provided for hereunder, the Indemnifying Party may thereafter assume the defense of such Third Party Claim; provided, further, that in the event the Indemnified Party conducts the defense of such Third Party Claim pursuant to this Section 9.05(e), the Indemnifying Party (x) shall be subrogatedreimburse the Indemnified Party for the costs of defending against such Third Party Claim (including reasonable attorneys’ fees and expenses) and (y) shall remain otherwise responsible for any Liability with respect to amounts arising from or related to such Third Party Claim, in each case, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed determined that Parent shall defend and control the Third such Indemnifying Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments is liable hereunder with respect to such Third Party Claim Claim.
(f) If any Indemnified Party becomes aware of any circumstances that may give rise to a claim for indemnification pursuant to Section 9.02 or Section 9.03 for any matter not involving a Third Party Claim, then such Indemnified Party shall promptly (i) notify in writing the Indemnifying Party and all Proceedings relating thereto(ii) deliver to the Indemnifying Party a written notice describing in reasonable detail the facts and circumstances and nature of such claim, demand or circumstance, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense basis of the MSA Matter Indemnified Party’s request for indemnification under this Agreement and shall consider in good faith including the views of Parent in respect Indemnified Party’s best estimate of the MSA Matteramount of Damages that may arise from such claim, demand or circumstance. Neither Spinco nor Failure to notify the Indemnifying Party in accordance with this Section 9.05(f) will not relieve the Indemnifying Party of any Spinco Liability that it may have to the Indemnified Party, except to the extent (A) the Indemnifying Party is actually and materially prejudiced by the Indemnified Party’s failure to give such notice or (B) the Indemnified Party fails to notify the Indemnifying Party of such claim in accordance with this Section 9.05(f) prior to the applicable Survival Expiration Date.
(g) At the reasonable request of the Indemnifying Party, each Indemnified Party shall consent or agree grant the Indemnifying Party and its Representatives all reasonable access to the books, records, employees and properties of such Indemnified Party to the extent reasonably related to the matters to which the applicable indemnification claim relates; provided, however, that such Indemnified Party shall not be required to grant access to any settlement or entry of judgment with respect information to the MSA Matter (including through extent such access or disclosure would result in the waiver of any approval legal privilege or work-product privilege. All such access shall be granted during normal business hours and shall be granted under the conditions which shall not unreasonably interfere with the business and operations of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayedIndemnified Party.
Appears in 1 contract
Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person The party seeking indemnification under Section 11.02 (the “Indemnified PersonParty”) shall agrees to give written prompt notice to the Party from party against whom such indemnification indemnity is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceedingsuit, brought action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have materially prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by a Person that is not a Parent Company or a Spinco Company any third party (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the Indemnifying Party will be entitled to assume the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claimand, subject to the limitations set forth in this Section 7.03Section, shall be entitled to control and appoint lead counsel for such defense, in such manner as it may deem appropriate. Without regard to whether each case at its expense.
(c) If the Indemnifying Party or shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 11.03, (i) the Indemnifying Party shall obtain the prior written consent of the Indemnified Person is defending and controlling Party (which shall not be unreasonably withheld) before entering into any settlement of such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in if the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and does not release the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, from all liabilities and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and all Proceedings relating thereto, including (ii) the defense of claims in respect thereof by Mission Support Alliance, LLC, Indemnified Party shall consult with Parent regarding any material developments and decisions be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the MSA Matter Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall consider furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in good faith connection therewith.
(e) Each Indemnified Party shall mitigate in accordance with Applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the views Indemnifying Party has paid the Indemnified Party under any indemnification provision of Parent this Agreement in respect of that loss, the MSA Matter. Neither Spinco nor any Spinco Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall consent use reasonable efforts to collect any amounts available under insurance coverage, or agree to from any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not other Person alleged to be unreasonably withheldresponsible, conditioned or delayedfor any Damages payable under Section 11.02.
Appears in 1 contract
Samples: Stock Purchase Agreement (Charles River Laboratories International Inc)
Procedures. (a) If any Parent An Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if give the Indemnifying Party notice of any Spinco matter which an Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification (the “Indemnified Person”) shall give written notice to the Party from whom such indemnification is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving has determined has given rise to a right of indemnification under this Agreement, within sixty (60) days of such claim for indemnification (an “Indemnified Claim”)determination, which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state stating the amount of Damages (or the Loss, if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain containing a reference to the provision provisions of this Agreement in respect of which such Indemnified Claim arises and demand right of indemnification therefor. The is claimed or arises; provided that the failure of an Indemnified Person to provide such notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver release the Indemnifying Party from any of that Person’s claims to indemnification pursuant to Section 7.02, its obligations under this Article VIII except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to is actually and materially prejudiced by such failure and shall not relieve the Indemnifying Party from any other obligation or (ii) such notice is not delivered liability that it may have to the Indemnifying Indemnified Party prior or otherwise than pursuant to the expiration of the applicable survival period set forth in Section 7.01. this Article VIII.
(b) If the an Indemnified Claim arises from the assertion Party shall receive notice of any claim, demand, action or the commencement of proceeding made by any Proceeding, brought by a Person that who is not a Parent Company Party or an Affiliate of a Spinco Company Party (each, a “Third Party Claim”)) against it which may give rise to a claim for Losses under this Article VIII, within sixty (60) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VIII except to the extent that the Indemnifying Party is actually and materially prejudiced by such failure and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party or otherwise than pursuant to this Article VIII. The Indemnifying Party shall be entitled, at its option, to assume and control the defense of such Third Party Claim at its expense and through counsel reasonably satisfactory to the Indemnified Party if it gives notice of its intention to do so to the Indemnified Party within thirty (30) days of the receipt of such notice from the Indemnified Party. If the Indemnifying Party elects to undertake any such defense against a Third Party Claim the Indemnified Party may, upon giving prior written notice to the Indemnifying Party shall be accompanied by Party, participate in such defense at its own expense. Notwithstanding the foregoing, if (i) the claim for indemnification is with respect to a copy of any papers theretofore served on criminal action, proceeding, indictment, allegation or delivered to investigation against the Indemnified Person in connection with such Third Party, (ii) the Indemnified Party Claim.
(b) In the event of receipt of notice has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party, (iii) the Indemnifying Party has failed or is failing to vigorously prosecute or defend such claim; (iv) the claim seeks an injunction or other equitable relief against the Indemnified Party or (v) the applicable Third Party Claim from an Indemnified Person pursuant is with respect to Section 7.03(aTaxes (which shall be governed by Article IX), then (A) the Indemnifying Party will shall not be entitled to assume the defense of any such claim or action and (B) the Indemnified Party shall have the right to conduct and control the defense of such action or claim with counsel reasonably acceptable to the Indemnifying Party and the Third Party legal and other reasonable and documented expenses incurred by the Indemnified Party shall be borne by the Indemnifying Party. The Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall not settle such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by unless the Indemnifying Party consents in writing (such consent not to be unreasonably withheld or delayed). If the Indemnified Person of its election to assume Indemnifying Party assumes the defense and control of a any Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to not, without the contrary, until such time as the Indemnifying Party assumes the defense and control prior written consent of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim, subject to the limitations set forth (which may be withheld in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending and controlling Party’s sole discretion), enter into any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense settlement or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to compromise or consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating theretoif such settlement, including compromise or judgment (w) involves a finding or admission of wrongdoing by the defense Indemnified Party or any of claims in respect thereof its Affiliates, (x) does not include an unconditional written release by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense claimant or plaintiff of the MSA Matter Indemnified Party and shall consider in good faith the views of Parent its Affiliates from all liability in respect of such Third Party Claim, (y) imposes equitable remedies or any obligation on the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement of its Affiliates other than solely the payment of money damages for which the Indemnified Party will be fully indemnified by the Indemnifying Party hereunder or entry of judgment (z) would materially interfere with respect to or materially adversely affect the MSA Matter (including through any approval of business, reputation, operations or consent to any action assets of the MSA joint venture) without the express written consent Indemnified Party or any of Parent, such consent not to be unreasonably withheld, conditioned or delayedits Affiliates.
Appears in 1 contract
Samples: Asset Purchase Agreement (CF Industries Holdings, Inc.)
Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person The party seeking indemnification under Section 11.01 (the “Indemnified Person”"INDEMNIFIED PARTY") shall agrees to give written prompt notice to the Party from party against whom such indemnification indemnity is sought (the “Indemnifying Party”"INDEMNIFYING PARTY") promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceedingsuit, brought by a Person action or proceeding ("CLAIM") in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto that is not a Parent Company or a Spinco Company (a “Third the Indemnifying Party Claim”), any such notice may reasonably request. The failure to so notify the Indemnifying Party shall be accompanied by a copy not relieve the Indemnifying Party of any papers theretofore served on or delivered its obligations hereunder, except to the Indemnified Person in connection with extent such Third Party Claimfailure shall have adversely affected the Indemnifying Party.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the The Indemnifying Party will shall be entitled to assume participate in the defense and control of such Third Party any Claim subject to the provisions of this Section 7.03(b). After written notice asserted by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claimthird party ("THIRD PARTY CLAIM") and, subject to the limitations set forth in this Section 7.03Section, shall be entitled to assume the control of and appoint lead counsel for such defense, in such manner as it may deem appropriate. Without regard to whether each case at its expense.
(c) If the Indemnifying Party or shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 11.03: (i) the Indemnifying Party shall obtain the prior written consent of the Indemnified Person is defending and controlling Party (which shall not be unreasonably withheld, delayed or conditioned) before entering into any settlement of such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in but only if the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and does not release the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, from all liabilities and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments obligations with respect to such Third Party Claim or if the settlement imposes injunctive or other equitable relief against the Indemnified Party; and all Proceedings relating thereto, including (ii) the defense of claims in respect thereof by Mission Support Alliance, LLC, Indemnified Party shall consult with Parent regarding any material developments and decisions be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA MatterIndemnified Party. Neither Spinco nor any Spinco Indemnified The Indemnifying Party shall consent or agree to any settlement or entry of judgment have no indemnification obligations with respect to any Third Party Claim that shall be settled by the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) Indemnified Party without the express prior written consent of Parentthe Indemnifying Party, such which consent shall not to be unreasonably withheld, conditioned delayed or delayedconditioned.
(d) Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim 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 reasonably requested in connection therewith. Indemnified Party shall keep Indemnifying Party fully informed of the defense of any Third Party Claim conducted by such Indemnified Party.
(e) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 11.01.
Appears in 1 contract
Samples: Stock Purchase Agreement (Air Transport Group Holdings, Inc.)
Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person The party seeking indemnification under Section 11.2 (the “Indemnified Person”"INDEMNIFIED PARTY") shall agrees to give written prompt notice to the Party from party against whom such indemnification indemnity is sought (the “Indemnifying Party”"INDEMNIFYING PARTY") promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware assertion of any claim or the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis commencement of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement any Proceeding in respect of which indemnity may be sought under such Indemnified Claim arises Section and demand indemnification thereforwill provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, so notify the Indemnifying Party shall not constitute a waiver relieve the Indemnifying Party of that Person’s claims to indemnification pursuant to Section 7.02its obligations hereunder, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by shall have adversely prejudiced the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party ClaimParty.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the The Indemnifying Party will shall be entitled to assume participate in the defense and control of such Third Party Claim subject to any claim asserted by any third party (the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim"THIRD PARTY CLAIM") and, subject to the limitations set forth in this Section 7.0311.3, shall be entitled to control and appoint lead counsel for such defense, in such manner as it may deem appropriateeach case at its expense. Without regard Notwithstanding anything to whether the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claimcontrary herein, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages with respect to an indemnification relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified ClaimTaxes, the Indemnifying Party shall be subrogated, entitled to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions participate in the defense of any claim asserted by a Governmental Entity relating to Taxes, but the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall control such defense. The Indemnified Party will not settle any such claim without the prior consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of ParentIndemnifying Party, such consent not to be unreasonably withheld.
(c) If the Indemnifying Party shall assume control of the defense of any Third Party Claim in accordance with the provisions of this Section 11.3, conditioned (i) the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheld) before entering into any settlement of such Third Party Claim, if the settlement does not release the Indemnified Party from all Liabilities and obligations with respect to such Third Party Claim or delayedthe settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim 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 reasonably requested in connection therewith.
Appears in 1 contract
Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person The party seeking indemnification under Section 11.02 (the “Indemnified Person”"-Indemnified Party") shall agrees to give written prompt notice to the Party from party against whom such indemnification indemnity is sought (the “"Indemnifying Party”") promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Personassertion of any claim or the commencement of any suit, action or proceeding ("Claim") becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which indemnity may be sought under such Indemnified Claim arises Section and demand indemnification thereforwill provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, so notify the Indemnifying Party shall not constitute a waiver relieve the Indemnifying Party of that Person’s claims to indemnification pursuant to Section 7.02its obligations hereunder, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by shall have materially and adversely prejudiced the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party ClaimParty.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the The Indemnifying Party will shall be entitled to assume participate in the defense and control of such Third Party any Claim subject to the provisions of this Section 7.03(b). After written notice asserted by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a any third party ("Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim") and, subject to the limitations set forth in this Section 7.03Section, shall be entitled to control and appoint lead counsel for such defense, in each case at its expense, provided that prior to assuming control of such manner as it may deem appropriate. Without regard to whether defense, the Indemnifying Party or the Indemnified Person is defending and controlling any must acknowledge that it will have an indemnity obligation for all Damages resulting from such Third Party ClaimClaim as provided under this Article 11 without regard to any limitation, it shall select counseldeductible, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary "basket" or similar provision in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.Section 11.02 hereof
(c) The Indemnifying Party shall not be authorized entitled to consent to a settlement of, assume or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any maintain control of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect defense of any Third Party Claim shall if (i) the Third Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (ii) the Indemnified Party reasonably believes an adverse determination with respect to the Third Party Claim would be consented detrimental to by any the Indemnified Person without Party's reputation or future business prospects, (iii) the express written consent of Third Party Claim seeks an injunction or equitable relief against the Indemnified Party or (iv) the Indemnifying PartyParty has failed or is failing to prosecute or defend vigorously the Third Party Claim.
(d) If an the Indemnifying Party makes shall assume the control of the defense of any payment on an Indemnified ClaimThird Party Claim in accordance with the provisions of this Section 11. 03, the Indemnifying Party shall be subrogated, to obtain the extent of such payment, to all rights and remedies prior written consent of the Indemnified Person to Party before entering into any insurance benefits or other claims or benefits settlement of such Third Party Claim, if the settlement does not expressly unconditionally release the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged Party from all liabilities and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments obligations with respect to such Third Party Claim and all Proceedings relating thereto, including or the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding settlement imposes injunctive or other equitable relief against or imposes any material developments and decisions in obligation on the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayedParty.
Appears in 1 contract
Samples: Asset Purchase Agreement (Onepoint Communications Corp /De)
Procedures. (a) If any Parent Person who or which is entitled to seek indemnification under Section 10.2 or Section 10.3 (an "INDEMNIFIED PARTY") receives notice of the assertion or commencement of any Third Party Claim against such Indemnified Party shall seek with respect to which the Person against whom or which such indemnification pursuant is being sought (an "INDEMNIFYING PARTY") is obligated to Section 7.02(a)provide indemnification under this Agreement, or if any Spinco the Indemnified Party shall seek indemnification pursuant will give such Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 20 days after receipt of such written notice of such Third Party Claim. Such notice by the Indemnified Party will describe the Third Party Claim in reasonable detail, will include copies of all available material written evidence thereof and will indicate the estimated amount, if reasonably practicable, of the Damages that has been or may be sustained by the Indemnified Party. The Indemnifying Party will have the right to Section 7.02(b)participate in, the Person seeking indemnification (the “Indemnified Person”) shall give or, by giving written notice to the Indemnified Party, to assume, the defense of any Third Party from whom Claim at such indemnification is sought (the “Indemnifying Party”) promptly 's own expense and by such Indemnifying Party's own counsel (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered reasonably satisfactory to the Indemnified Person Party), and the Indemnified Party will cooperate in connection with good faith in such Third Party Claimdefense.
(b) In the event of receipt of If, within ten days after giving notice of a Third Party Claim from to an Indemnified Person Indemnifying Party pursuant to Section 7.03(a10.4(a), an Indemnified Party receives written notice from the Indemnifying Party that the Indemnifying Party has elected to assume the defense of such Third Party Claim as provided in the last sentence of Section 10.4(a), the Indemnifying Party will not be liable for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof; PROVIDED, HOWEVER, that if the Indemnifying Party fails to take reasonable steps necessary to defend diligently such Third Party Claim within ten days after receiving written notice from the Indemnified Party that the Indemnified Party reasonably believes the Indemnifying Party has failed to take such steps or if the Indemnifying Party has not undertaken fully to indemnify the Indemnified Party in respect of all damages relating to the matter, the Indemnified Party may assume its own defense, and, subject to Sections 10.2(a) and (b), the Indemnifying Party will be liable for all reasonable costs and expenses paid or incurred in connection therewith. Without the prior written consent of the Indemnified Party, except to the extent expressly set forth in this Agreement, the Indemnifying Party will not enter into any settlement of any Third Party Claim which would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to assume indemnification hereunder, or which provides for injunctive or other non-monetary relief applicable to the defense Indemnified Party, or does not include an unconditional release of all Indemnified Parties. If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder and control the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party will give written notice to the Indemnified Party to that effect. If the Indemnified Party fails to consent to such firm offer within ten days after its receipt of such notice, the Indemnified Party may continue to contest or defend such Third Party Claim and, in such event, the maximum liability of the Indemnifying Party as to such Third Party Claim will not exceed the amount of such settlement offer. The Indemnified Party will provide the Indemnifying Party with reasonable access during normal business hours to books, records, and employees of the Indemnified Party necessary in connection with the Indemnifying Party's defense of any Third Party Claim which is the subject of a claim for indemnification by an Indemnified Party hereunder.
(c) Any claim by an Indemnified Party on account of Damages which does not result from a Third Party Claim (a "DIRECT CLAIM") will be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 20 days after the Indemnified Party becomes aware of such Direct Claim. Such notice by the Indemnified Party will describe the Direct Claim in reasonable detail, will include copies of all available material written evidence thereof and will indicate the estimated amount, if reasonably practicable, of Damages that has been or may be sustained by the Indemnified Party. The Indemnifying Party will have a period of ten days within which to respond in writing to such Direct Claim. If the Indemnifying Party does not so respond within such ten day period, the Indemnifying Party will be deemed to have rejected such claim, in which event the Indemnified Party will be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying PartyAgreement.
(d) If an Indemnifying Party makes A failure to give timely notice or to include any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to specified information in any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this notice as provided in Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”10.4(a), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent 10.4(b) or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed.10.4
Appears in 1 contract
Samples: Asset Purchase Agreement (General Automation Inc/Il)
Procedures. (a) If any Parent Indemnified The Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification under Section 8.2 or 8.3 (the “Indemnified PersonParty”) shall give may make claims for indemnification hereunder by giving written notice (a “Claim Notice”) to the Party from whom such required to provide indemnification is sought hereunder (the “Indemnifying Party”). Such notice shall briefly explain the nature of the claim and the parties known to be involved, and shall specify the amount thereof to the extent known by the Indemnified Party. Each Indemnifying Party to which a Claim Notice is given shall respond to any Indemnified Party that has given a Claim Notice (a “Claim Response”) promptly within twenty (and in any event within 10 days20) days (the “Response Period”) after the Indemnified Person (ordate that the Claim Notice is given. Any Claim Notice or Claim Response shall be given in accordance with the notice requirements hereunder, if and any Claim Response shall specify whether or not the Indemnified Person is Indemnifying Party giving the Claim Response disputes the claim for indemnification described in the Claim Notice and whether it will defend any Third Party Claim specified in such Claim Notice at its own cost and expense. If any Indemnifying Party fails to give a corporationClaim Response within the Response Period, such Indemnifying Party shall be deemed to have disputed the claim for indemnification described in the related Claim Notice and to have elected not to defend any officer Third Party Claim specified in such Claim Notice. The aforesaid election or director deemed election by the Indemnifying Party not to assume the defense of the Indemnified Person) becomes aware Party with respect to any Third Party Claim specified in such Claim Notice, however, shall, except as contemplated by the following proviso, be subject to the right of the facts giving rise Indemnifying Party to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail subsequently assume the factual basis defense of the Indemnified Claim, state Party with respect to any such any Third Party Claim at any time prior to settlement or final determination thereof; provided that the amount Indemnifying Party shall not have the right to so assume the defense of Damages the Indemnified Party with respect to any Third Party Claim which the Indemnifying Party has (or if is deemed to have) previously elected not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except defend to the extent that (i) any the Indemnified Party would be prejudiced as a result of such failure or delay in giving notice causes the amounts paid or to be paid by the assumption. If an Indemnifying Party to be greater than they otherwise would have been then or otherwise results in prejudice thereafter elects pursuant to the Indemnifying foregoing to assume the defense of an Indemnified Party or (ii) such notice is not delivered with respect to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a)specified in such Claim Notice, then, without limiting any action the Indemnifying Party will be entitled to assume the defense and control may have on account of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claimactual fraud, the Indemnifying Party shall not be liable entitled to such recover from the Indemnified Person for any legal fees or Party the costs and expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The providing such defense, whether or not the Indemnifying Party shall be authorized disputes or is deemed to consent have disputed the claim for indemnification described in the related Claim Notice. If any Indemnifying Party gives a Claim Response with respect to a settlement ofClaim Notice and fails to dispute (or reserve the right to dispute) any claim for indemnification described in such Claim Notice, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, then the Indemnifying Party shall be subrogated, deemed to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged have accepted and agreed that Parent shall defend and control to each such claim for indemnification as to which it fails to dispute or reserve the Third Party Claims described right to dispute in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party its Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayedResponse.
Appears in 1 contract
Samples: Asset Sale Agreement (Sunoco Inc)
Procedures. (a) If In order for any Parent Buyer Indemnitee or Seller Indemnitee (each, an “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim made by any Person against the Indemnified Party shall seek indemnification pursuant to Section 7.02(a(a “Third-Party Claim”), or if any Spinco such Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification (the “Indemnified Person”) shall give written notice to must notify the Party from whom such indemnification is sought which may be required to indemnify the Indemnified Party therefor (the “Indemnifying Party”) promptly in writing (and in any event within 10 daysreasonable detail) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Third-Party Claim within fifteen (15) Business Days after receipt by such Indemnified Person) becomes aware Party of notice of the facts giving rise Third-Party Claim; provided, however, that failure to give such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, notification shall not constitute a waiver of that Person’s claims to affect the indemnification pursuant to Section 7.02, provided hereunder except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall have been actually and materially prejudiced as a result of such failure (except that the Indemnifying Party shall not be accompanied by a copy of liable for any papers theretofore served on or delivered expenses incurred during the period in which the Indemnified Party failed to give such notice). Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, within five (5) Business Days after the Indemnified Person in connection with such Third Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third-Party Claim.
(b) In the event of receipt of notice of If a Third Third-Party Claim from is made against an Indemnified Person pursuant to Section 7.03(a)Party, the Indemnifying Party will shall be entitled to participate in the defense thereof and, if it so chooses, to assume the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice thereof with counsel selected by the Indemnifying Party. Should the Indemnifying Party to the Indemnified Person of its election so elect to assume the defense and control of a Third Third-Party Claim, the Indemnifying Party shall not be liable to such the Indemnified Person Party for any legal fees or expenses subsequently incurred by such the Indemnified Person Party in connection therewithwith the defense thereof. Notwithstanding anything If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in this Section 7.03 the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof (other than during any period in which the Indemnified Party shall have failed to give notice of the Third-Party Claim as provided above). If the Indemnifying Party chooses to defend or prosecute a Third-Party Claim, all the Indemnified Parties shall reasonably cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the contraryIndemnifying Party of records and information that are reasonably relevant to such Third-Party Claim, until such time as and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party assumes the defense and control of a Third Third-Party Claim as provided in this Section 7.03Claim, the Indemnified Person Party shall have not admit any liability with respect to, or settle, compromise or discharge, such Third-Party Claim without the right to defend such Third Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld). If the Indemnifying Party assumes the defense of a Third-Party Claim, subject the Indemnified Party shall agree to the limitations set forth in this Section 7.03any settlement, in such manner as it may deem appropriate. Without regard to whether compromise or discharge of a Third-Party Claim that the Indemnifying Party or may recommend and that by its terms obligates the Indemnified Person is defending and controlling any Indemnifying Party to pay the full amount of the liability in connection with such Third Third-Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in which releases the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Indemnified Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party completely in connection with any Third such Third-Party ClaimClaim and that would not otherwise adversely affect the Indemnified Party.
(c) The Notwithstanding Section 11.7(b), the Indemnifying Party shall not be authorized entitled to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claimscontrol, and the Indemnified Person Party shall consent be entitled to a have sole control over, the defense or settlement of, or the entry of any judgment arising from, such Third Party Claims, claim if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition following conditions are not satisfied:
(i) the Indemnifying Party shall acknowledge in writing that would apply it shall be fully responsible, subject to Sections 11.2(b) and 11.9, for all Losses relating to such proceeding;
(ii) the Indemnifying Party must diligently defend such proceeding;
(iii) the Indemnifying Party must furnish the Indemnified Person or Party with evidence reasonably satisfactory to the conduct of Indemnified Party that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf the financial resources of the Indemnified Person Indemnifying Party (or any of its Affiliatesthe funds available in the Escrow Account), and (C) such settlement contains as a condition thereto, a complete release of in the Indemnified Person. No settlement or entry of judgment Party’s reasonable judgment, are and will be sufficient (when considering Losses in respect of all other outstanding claims) to satisfy any Third Party Claim Losses relating to such proceeding; and
(iv) such proceeding shall be consented to not involve criminal actions or allegations of criminal conduct by any Indemnified Person without the express written consent of the Indemnifying Party, and shall not involve claims for specific performance or other equitable relief; and
(v) there does not exist, in the Indemnified Party’s good faith judgment based on the advice of outside legal counsel, a conflict of interest which, under applicable principles of legal ethics, would reasonably be expected to prohibit a single legal counsel from representing both the Indemnified Party and the Indemnifying Party in such proceeding.
(d) If an In the event any Indemnified Party should have a claim against any Indemnifying Party makes under Section 11.2 or Section 11.3 that does not involve a Third-Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim with reasonable promptness to the Indemnifying Party and in any payment on an event prior to the expiration of the underlying representations and warranties, if applicable. The failure by any Indemnified Claim, Party so to notify the Indemnifying Party shall be subrogatednot relieve the Indemnifying Party from any liability that it may have to such Indemnified Party under Section 11.2 or Section 11.3, except to the extent of that the Indemnifying Party demonstrates that it has been actually and materially prejudiced by such payment, to all rights and remedies of failure. If the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person Indemnifying Party disputes its liability with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge Indemnifying Party and agree that the provisions of Section 5.02(b) Indemnified Party shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider proceed in good faith the views to negotiate a resolution of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including such dispute and, if not resolved through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parentnegotiations, such consent dispute shall be resolved through arbitration proceedings (and not to be unreasonably withheld, conditioned or delayedby litigation) consistent with Section 12.8.
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Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification (the “Indemnified Person”) shall give written notice to the Party from whom such indemnification is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving Promptly after receipt by a party (the "Indemnified Party") of notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, a Loss or the commencement of any Proceedingaction, brought by a Person that is not a Parent Company suit or a Spinco Company proceeding (a “Third "Proceeding") against which it believes it is indemnified under this Section 7, the Indemnified Party Claim”shall so notify the party or parties obligated to provide such indemnification under this Section 7 (the "Indemnifying Party"); provided, any such notice however, that the failure so to notify the Indemnifying Party shall be accompanied by a copy of only relieve it from any papers theretofore served on or delivered liability that it may have to the Indemnified Person in connection with Party to the extent that the Indemnifying Party is actually prejudiced by such Third Party Claimfailure.
(bii) In the event of The Indemnifying Party shall, in a writing delivered within 30 days after receipt of a notice of a Third Party Claim from an Indemnified Person Loss or Proceeding given pursuant to Section 7.03(a7(c)(i), either: (A) acknowledge liability for such Loss or the amount in controversy in such Proceeding and pay the Indemnified Party the amount of such Loss or the amount in controversy in such Proceeding in cash in immediately available funds (or establish by agreement with the Indemnified Party an alternative payment arrangement); (B) acknowledge liability, as between the Indemnifying Party will be entitled and the Indemnified Party, for such Loss or the subject matter in such Proceeding but disavow the validity of the Loss or Proceeding or the amount thereof and, in the case of a Proceeding, advise whether the Indemnifying Party elects to assume the defense and control of such Third Party Claim subject thereof in accordance with Section 7(c)(iv); or (C) in writing object (or reserve the right to object until additional information is obtained) to the provisions of this Section 7.03(b)claim for indemnification or the amount thereof and set forth the grounds therefor in reasonable detail. After written notice by If the Indemnifying Party does not so respond to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to within such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim30-day period, the Indemnifying Party shall be subrogateddeemed to have acknowledged its liability for such indemnification claim as between the Indemnifying Party and the Indemnified Party (but shall not be deemed to have acknowledged liability to any other Person), and the Indemnified Party may exercise any and all of its rights under applicable law to collect such amount.
(iii) An Indemnifying Party shall not, without the extent of such payment, to all rights and remedies prior written consent of the Indemnified Person Party (which shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any insurance benefits pending or other claims threatened Proceeding in respect of which indemnification or benefits contribution is sought hereunder, unless such settlement, compromise or consent: (1) requires no action and imposes no restriction on the part of the Indemnified Person with respect to such claimParty, (2) does not require any admission of wrongdoing on the part of the Indemnified Party and (3) includes a full and unconditional release of the Indemnified Party.
(eiv) Without limiting Subject to Section 7(c)(v) and if the provisions Indemnifying Party has responded to the notice given by the Indemnified Party in accordance with Section 7(c)(ii)(B), the Indemnifying Party shall be entitled to assume the legal defense of this Section 7.03a Proceeding at its own expense with counsel reasonably satisfactory to the Indemnified Party. The Indemnified Party may employ separate counsel in any Proceeding and participate in the defense thereof, it is acknowledged but the fees and agreed that Parent expenses of such counsel shall defend and control be at the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance expense of the foregoingIndemnified Party unless: (A) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party, (B) the Indemnifying Party shall have failed to assume the defense of such action or (C) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party. If the Indemnifying Party does not assume the defense of a Proceeding as to which it has acknowledged liability, as between itself and the Indemnified Party, pursuant to Section 7(c)(ii)(B), the Parties acknowledge Indemnified Party may require the Indemnifying Party to reimburse it on a current basis for its reasonable Expenses incurred in connection therewith and agree that the Indemnifying Party shall be bound by the result obtained with respect thereto by the Indemnified Party.
(v) In the case of a Loss as to which the Indemnifying Party shall have responded pursuant to Section 7(c)(ii)(C), the parties shall attempt in good faith to resolve their differences for a period of 20 days following receipt by the Indemnified Party of such response. If the parties are unable to resolve their differences within such period, the Indemnified Party may submit the matter to a court of competent jurisdiction in accordance with the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”8(i), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed.
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Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person A party seeking indemnification (the “Indemnified PersonParty”) in respect of, arising out of or involving a Loss or a claim or demand made by any person against the Indemnified Party (a “Third-Party Claim”) shall give written deliver notice (a “Claim Notice”) in respect thereof to the Party from party against whom such indemnification indemnity is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) with reasonable promptness after the receipt by such Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director Party of notice of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Third-Party Claim, state and shall promptly provide the amount of Damages (or if not known, a good faith estimate of Indemnifying Party with such information with respect thereto as the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification thereforIndemnifying Party may reasonably request. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a)deliver a Claim Notice, or any delay in providing such noticehowever, shall not constitute a waiver release the Indemnifying Party from any of that Person’s claims to indemnification pursuant to Section 7.02, its obligations under this Article VIII except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been is materially prejudiced by such failure. In furtherance and not in limitation of the foregoing or otherwise results in prejudice anything herein contained to the Indemnifying Party contrary, any Claim Notices delivered shall specify, with reasonable detail and particularity, the nature of the Claim, the section or sections of the Agreement to which the Claim relates, and the amount of such Losses (iiif known) or a good faith, reasonable estimate of such notice is not delivered Losses (to the Indemnifying Party prior to extent ascertainable at such time) (the expiration of “Claimed Losses” ) and the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, basis upon which such calculation or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company estimate has been determined (a “Third Party Claim”together with reasonable supporting documentation therefor), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant Except with respect to Section 7.03(a)any Special Claim, the Indemnifying Party will be entitled shall have the right (by notifying the Indemnified Party in writing of its intent within 20 days after receipt of the Third-Party Claim Notice) but not the obligation to assume control the defense of any Third-Party Claim, and control all reasonable fees and expenses of such Third the Indemnifying Party’s counsel shall be borne by the Indemnifying Parties. If the Indemnifying Party Claim subject is controlling the defense of a Third-Party Claim, the Indemnified Party shall have the right to the provisions of this Section 7.03(b). After written notice employ counsel separate from counsel employed by the Indemnifying Party in any such action and to the Indemnified Person of its election to assume participate in (but not control) the defense and control of a Third such action at its sole expense. If the Indemnifying Party assumes the defense of any such Third-Party Claim, the Indemnifying Party shall not be liable will select counsel to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes conduct the defense and control of a Third Party Claim as provided in this Section 7.03such claim or proceeding, the Indemnified Person shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall will take reasonable all steps necessary in the investigation, defense or settlement thereof, thereof and shall will at all times diligently and promptly pursue the resolution thereof. The If the Third-Party conducting Claim is a Special Claim, or if the Indemnifying Party does not assume the defense thereof of such Third-Party Claim or proceeding resulting therefrom in accordance with the terms of this Section 8.4, the Indemnified Party may defend against such claim or proceeding, and shall at all times act be reimbursed by the Indemnifying Party for such reasonable costs and expenses, in the manner the Indemnified Party may deem appropriate, including settling such claim or proceeding on such terms as if all Damages relating the Indemnified Party may deem appropriate, with the prior written consent of the Indemnifying Party (which shall not be unreasonably withheld, conditioned or delayed). All parties to this Agreement shall cooperate in the defense or prosecution of such Third Party Claim were and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trials as may be reasonably requested in connection with such Third-Party Claim; provided, that no party shall be required to grant access or furnish information to the extent that such information is subject to an attorney/client or attorney work product privilege; and provided further, that a party and/or its counsel shall use their commercially reasonable efforts to enter into such joint defense agreements or other arrangements, as appropriate, so as to allow for its own account and such disclosure in a manner that does not result in the loss of attorney/client or attorney work product privilege. Each party shall act in good faith and with in a commercially reasonable prudence to minimize Damages therefrommanner in addressing any adverse consequences that may result in the basis for an indemnifiable claim. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with If the Indemnifying Party assumed the defense of any claim or proceeding in connection accordance with any Third Party Claim.
(c) The this Section 8.4, the Indemnifying Party shall will be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third such claim or proceeding, 60 with the prior written consent of each relevant Indemnified Party Claims(which shall not be unreasonably withheld); provided, and however, that the Indemnified Person shall consent Indemnifying Party will pay or cause to a settlement of, or the entry be paid all amounts arising out of any judgment arising from, such Third Party Claims, if (A) such settlement shall or judgment concurrent with the effectiveness thereof; provided further, that the Indemnifying Party is not authorized to encumber any of the assets of any Indemnified Person Party or contain to agree to any restriction or condition that would apply to such any Indemnified Person Party or to the its conduct of business; and provided further, that Person’s business, (B) a condition to any such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, is a complete release of each relevant Indemnified Party and its Affiliates, directors, officers, employees and agents with respect to the claim made.
(c) An Indemnified Party seeking indemnification in respect of, arising out of or involving a Loss or a claim or demand hereunder that does not involve a Third‑Party Claim being asserted against or sought to be collected from such Indemnified Party (a “Direct Claim”) shall deliver a Claim Notice in respect thereof to the Indemnifying Party with reasonable promptness after becoming aware of facts supporting such Direct Claim, and shall provide the Indemnifying Party with such information with respect thereto as the Indemnifying Party may reasonably request. The failure to deliver a Claim Notice shall not release the Indemnifying Party from any of its obligations under this Article VIII except to the extent that the Indemnifying Party is materially prejudiced by such failure and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified PersonParty or otherwise than pursuant to this Article VIII. No settlement or entry If the Indemnifying Party does not notify the Indemnified Party within 20 days following its receipt of judgment a Claim Notice in respect of a Direct Claim that the Indemnifying Party disputes its liability (in whole or in part) to the Indemnified Party hereunder, which may consist of, for the avoidance of doubt, an objection based on the inability to determine (i) the propriety of indemnification of any Third or all claims contained in the Claim Notice, (ii) the accuracy of any statement of fact or Losses set forth in the Claim Notice and/or (iii) to the extent the Claim Notice seeks indemnification under Section 8.2(a) or Section 8.3(a), the fact that the facts alleged in the Claim Notice do not constitute a breach of a representation or warranty for which indemnification is available pursuant to Section 8.2(a) or Section 8.3(a), as applicable (any such notice, an “Objection Notice”), such Direct Claim specified by the Indemnified Party in such Claim Notice shall be consented to by any Indemnified Person without the express written consent conclusively deemed a liability of the Indemnifying PartyParty hereunder and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand. If the Indemnifying Party timely disputes (in whole or in part) its liability to the Indemnified Party hereunder in accordance with the terms hereof, the Indemnifying Party and the Indemnified Party will, for a period of 30 days following delivery of the Objection Notice, negotiate in good faith to resolve the items disputed in the Objection Notice. During such 30-day period each of such parties shall promptly provide the other with such information regarding the Direct Claim as such other party may reasonably request. If the Indemnified Party and the Indemnifying Party are unable to fully resolve the items disputed in the Objection Notice during such 30-day period, the Indemnified Party and the Indemnifying Party will be entitled to initiate such proceedings and seek such remedies as may be permitted under the terms of this Agreement.
(d) If an Indemnifying Party makes any Subject to Section 8.5, the indemnification required hereunder shall be made by prompt payment on an Indemnified Claim, by the Indemnifying Party shall be subrogatedof the amount of actual Losses in connection therewith, to promptly following agreement between the extent Indemnifying Party and the Indemnified Party of the amount of Losses incurred or if no such agreement, upon receipt of a final, non-appealable court order determining the amount of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claimLosses.
(e) Without limiting The Indemnifying Party shall not be entitled to require that any action be made or brought against any other Person before action is brought or claim is made against it hereunder by the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 Indemnified Party.
(the “ASBCA Matter”). In furtherance of f) Notwithstanding the foregoing, following the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”)Closing, the Parties acknowledge Buyer shall not initiate any discussions, proceedings, audits, examinations or any other contacts relating to sales and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense use Taxes of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor Company with any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) Governmental Authority for a Pre-Closing Tax Period, without the express written consent of Parent, such consent Sellers Representative (not to be unreasonably withheld, conditioned delayed or delayedconditioned). Sellers Representative shall have the right to determine which Governmental Authority to initiate discussions with regarding resolution, including voluntary disclosure agreements, of outstanding sales and use Tax liability of Seller for a Pre-Closing Tax Period. The rights of the parties to control and participate in the process and defense of any such sales and use Tax matters (including with respect to settlement) shall be governed in the same manner as Third Party Claims under Section 8.4(b). For the avoidance of doubt, and notwithstanding anything else to the contrary in this Agreement, (i) Buyer shall have the right to initiate any discussions, proceedings, audits, examinations, voluntary disclosure agreements, or any other contacts relating to sales and use Taxes of On-Site Labs and DepositIQ with any Governmental Authority for any Pre-Closing Tax Period or Straddle Period, without the consent of Sellers Representative, (ii) the Sellers Representative shall have the right to participate (at its own expense) in the process and defense of any such sales and use Tax matters and Buyer shall not consent to settlement of any such matter without the consent of the Sellers Representative (which shall not be unreasonably withheld), and (iii) nothing in this Agreement shall be construed to limit Buyer’s ability after the Closing to file Tax Returns with any Governmental Authority with respect to any sales or use Taxes of On-Site Labs, Deposit IQ, or Buyer (or any of its Affiliates) for any Tax period that is a Straddle Period or that begins after the Closing Date. No action by Buyer or any of its Affiliates that is authorized in this Section 8.4(f) shall result in any limitation on any Seller Party’s obligation to indemnify any Buyer Indemnified Party with respect to Losses for any Sales Tax Claim pursuant to this Agreement.
(g) To the extent any provision of this Section 8.4 is in conflict with or inconsistent with the provisions of Article VI, Article VI shall govern.
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Procedures. Claims for indemnification under this Agreement shall only be asserted and resolved as follows:
(a) If Any Buyer Indemnitee or Seller Indemnitee claiming indemnification under this Agreement (an “Indemnified Party”) with respect to any Parent claim asserted against the Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified by a third party (“Third Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification (the “Indemnified PersonClaim”) in respect of any matter that is subject to indemnification under Section 8.02 shall give written (i) promptly (but no later than twenty (20) days after receiving notice to of the Third Party from whom such indemnification is sought Claim) notify the other Party (the “Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified PersonThird Party Claim and (ii) becomes aware transmit to the Indemnifying Party a written notice (a “Claim Notice”) stating the nature, basis, the amount thereof (to the extent known or estimated, which amount shall not be conclusive of the facts giving rise to final amount of such claim for indemnification (an “Indemnified Third Party Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference thereof (to the provision extent known or estimated), any other remedy sought thereunder, any relevant time constraints relating thereto, and, to the extent practicable, any other material details pertaining thereto, along with copies of this Agreement in respect of which the relevant documents evidencing such Indemnified Third Party Claim arises and demand the basis for indemnification thereforsought. The failure of an Indemnified Person Failure to provide notice notify the Indemnifying Party in accordance with this Section 7.03(a), or 8.03(a) will not relieve the Indemnifying Party of any delay in providing such notice, shall not constitute a waiver of Liability that Person’s claims it may have to indemnification pursuant to Section 7.02the Indemnified Party, except to the extent that (i1) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party is prejudiced by the Indemnified Party’s failure to be greater than they otherwise would have been give such notice or otherwise results in prejudice (2) with respect to claims for indemnification pursuant to Section 8.02(a)(i) or Section 8.02(b)(i) the Indemnified Party fails to notify the Indemnifying Party or (iiof such Third Party Claim in accordance with this Section 8.03(a) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth Survival Expiration Date. The Parties will act in Section 7.01. If the Indemnified Claim arises from the assertion of any claimgood faith in responding to, defending against, settling or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “otherwise dealing with Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party ClaimClaims.
(b) In An Indemnifying Party may elect at any time to assume and thereafter conduct the event defense of receipt of notice of a any Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), with counsel of the Indemnifying Party will be entitled Party’s choice and to assume the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees settle or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending and controlling compromise any such Third Party Claim, it and each Indemnified Party shall select counselreasonably cooperate with the conduct of such defense by the Indemnifying Party with respect thereto; provided, contractorshowever, experts that the Indemnifying Party will not approve of the entry of any 76
(c) If any Indemnified Party becomes aware of any circumstances that may give rise to a claim for indemnification pursuant to Section 8.02 for any matter not involving a Third Party Claim, then such Indemnified Party shall promptly (i) notify the Indemnifying Party and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating (ii) deliver to the Third Indemnifying Party Claim were a written notice describing in reasonable detail the nature of the claim, describing in reasonable detail the basis of the Indemnified Party’s request for its own account indemnification under this Agreement and shall act in good faith and with reasonable prudence including the Indemnified Party’s best estimate of the amount of Damages (if calculable) reasonably expected to minimize Damages therefromarise or that may arise from such claim. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with Failure to notify the Indemnifying Party in connection accordance with any Third Party Claim.
(cthis Section 8.03(c) The will not relieve the Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and liability that it may have to the Indemnified Person shall consent Party, except to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if extent (A) the Indemnifying Party is prejudiced by the Indemnified Party’s failure to give such settlement shall not encumber any of the assets of any Indemnified Person notice or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement with respect to claims for indemnification pursuant to Section 8.02(a)(i) or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of Section 8.02(b)(i) the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented fails to by any Indemnified Person without the express written consent of notify the Indemnifying PartyParty of such claim in accordance with this Section 8.03(c) prior to the applicable Survival Expiration Date.
(d) If an At the reasonable request of the Indemnifying Party, each Indemnified Party makes any payment on an Indemnified Claim, shall grant the Indemnifying Party shall be subrogatedand its Representatives all reasonable access to the books, records, employees and properties of such Indemnified Party to the extent reasonably related to the matters to which the applicable indemnification claim relates. All such access shall be granted during normal business hours and shall be granted under the conditions which shall not unreasonably interfere with the business and operations of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claimParty.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Samples: Securities Purchase Agreement (Centerpoint Energy Inc)
Procedures. Subject to Section 10.2(f) (in the case of the determination of the amount of Non-Cash Losses), claims for indemnification under this Agreement shall be asserted and resolved as follows:
(a) If any Parent Person who or that is entitled to seek indemnification under Section 10.2 (an “Indemnified Party”) receives notice of the assertion or commencement of any claim asserted against such Indemnified Party by a third party (a “Third Party Claim”) in respect of any matter that is subject to indemnification under Section 10.2, the Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification promptly: (the “Indemnified Person”i) shall give written notice to notify the Party or Parties from whom such indemnification is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified PersonThird Party Claim; and (ii) becomes aware of transmit to the facts giving rise to such claim for indemnification Indemnifying Party a written notice (an a “Indemnified ClaimClaim Notice”), which notice shall specify ) describing in reasonable detail the factual basis nature of the Indemnified Third Party Claim, state a copy of all papers served with respect to such Third Party Claim (if any), the amount of Damages (or if not known, a good faith Indemnified Party’s estimate of the amount of Damages) Losses attributable to the Third Party Claim (if available), and the method basis of computation thereof, contain a reference the Indemnified Party’s request for indemnification under this Agreement. Failure to the provision of this Agreement in respect of which timely provide such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, Notice shall not constitute a waiver affect the right of that Personthe Indemnified Party’s claims to indemnification pursuant to Section 7.02hereunder, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been is prejudiced by such delay or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claimomission.
(b) In If the event Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party against all Losses that may result from such Third Party Claim in accordance with, and subject to, the limitations set forth in this Article 10, subject to the final sentence of this Section 10.3(b), and it notifies the Indemnified Party within twenty (20) Business Days of the receipt of notice of a the Third Party Claim from an the Indemnified Person pursuant to Section 7.03(a), Party that the Indemnifying Party will be entitled elects to assume the defense and control of the Third Party Claim, then the Indemnifying Party shall have the right to defend the Indemnified Party (unless the Indemnified Party is the Company) against such Third Party Claim subject at its expense with counsel selected by such Indemnifying Party (who shall be reasonably satisfactory to the provisions of this Section 7.03(bIndemnified Party). After written notice , and by appropriate proceedings (which proceedings shall be prosecuted diligently by the Indemnifying Party to Party); provided, however, that Sellers shall not have the Indemnified Person of its election right to assume the defense and or control of Specified Litigation. The Indemnifying Party shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel in each jurisdiction for which the Indemnified Party determines counsel is required, at the expense of the Indemnifying Party, and provided, further, that no Indemnifying Party shall enter into any settlement agreement without the written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed); and provided, further, that such consent shall not be required if the settlement agreement: (i) contains a complete and unconditional general release by the Person asserting the Third Party Claim to all Indemnified Parties affected by the claim; (ii) does not contain any sanction or restriction upon the conduct of any business by the Indemnified Party or its Affiliates; and (iii) does not have a material adverse Tax consequence with respect to the Company, the Indemnified Parties, the assets of the Company or the Subject Interests after the Closing Date. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to reasonably cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Indemnifying Party shall not be liable to reasonably cooperate with the Indemnified Party in such defense. The Indemnified Person for Party may participate in (but in no case control) any legal fees defense or expenses subsequently incurred settlement of any Third Party Claim controlled by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes pursuant to this Section 10.3(b); provided, that the Indemnified Party shall bear its own costs and expenses with respect to any such participation. The Indemnifying Party shall not be entitled to assume the defense and control of a Third Party Claim as provided if the Third Party Claim seeks Losses in excess of one hundred fifty percent (150%) of the amount for which all Indemnifying Parties may be liable under this Section 7.03, Agreement.
(c) If the Indemnifying Party does not timely notify the Indemnified Person Party that the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 10.3(b), then the Indemnified Party shall have the right to defend such defend, and be reimbursed for its reasonable cost and expense, including fees and expenses of counsel and experts (but only if the Indemnified Party is actually entitled to indemnification under this Article 10) in regard to the Third Party Claim, subject with counsel selected by the Indemnified Party (who shall be reasonably satisfactory to the limitations set forth in this Section 7.03Indemnifying Party), in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or and by appropriate proceedings (which proceedings shall be prosecuted diligently by the Indemnified Person is defending and controlling Party). In such circumstances, the Indemnified Party shall defend any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shallhave full control of such defense and proceedings, and shall cause each of its Affiliates and Representatives toincluding any compromise or settlement thereof; provided, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement ofhowever, or the entry of any judgment arising from, any Third Party Claims, and that the Indemnified Person shall consent to a Party may not enter into any compromise or settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree if indemnification is to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) be sought under this Article 10 without the express written Indemnifying Party’s consent of Parent, such (which consent shall not to be unreasonably withheld, conditioned or delayed). The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 10.3(c), and the Indemnifying Party shall bear its own costs and expenses with respect to any such participation.
(d) Any claim by an Indemnified Party on account of Losses that does not result from a Third Party Claim (a “Direct Claim”) will be asserted by giving the Indemnifying Party reasonably prompt written notice after the Indemnified Party becomes actually aware of such Direct Claim. Such notice by the Indemnified Party shall describe the Direct Claim in reasonable detail, and indicate the estimated amount, if known, of damages that have been sustained by the Indemnified Party. The Indemnifying Party will have a period of five (5) Business Days to respond in writing to such Direct Claim. If the Indemnifying Party does not so respond within such five (5) Business Day period, the Indemnifying Party will be deemed to have rejected such Direct Claim, in which event the Indemnified Party will be free to pursue such remedies as may be available to the Indemnified Party under the terms and subject to the provisions of this Agreement.
(e) Any indemnification payment made pursuant to this Agreement shall be net of any insurance proceeds realized by and paid to the Indemnified Party in respect of such claim, and such Indemnified Party shall use commercially reasonable efforts to pursue such proceeds. Sellers shall not use the Company’s funds for any indemnity payment to a Buyer Indemnified Party (provided that this shall not prevent or prohibit the Company from using insurance proceeds to reduce the Company’s loss for a matter that might lead to an indemnification obligation) and Sellers waive any right of subrogation, recourse or contribution against the Company, Operator, their respective Representatives or their insurers arising out of Sellers’ indemnity obligations under this Agreement.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Magellan Midstream Partners Lp)
Procedures. (a) If In order for a Purchaser Indemnitee to be entitled to any Parent indemnification provided for under this Agreement in respect of, arising out of or involving a Loss or a claim or demand made by any third party against the Indemnified Party shall seek indemnification pursuant to Section 7.02(a(a “Third Party Claim”), or if any Spinco Indemnified Party such Purchaser Indemnitee shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification (the “Indemnified Person”) shall give written deliver notice thereof to the Party from party against whom such indemnification indemnity is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) after receipt by such Purchaser Indemnitee of written notice of the Indemnified Person (orThird Party Claim attaching, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not knownapplicable, a good faith estimate copy of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification thereforThird Party Claim. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, however, shall not constitute a waiver release the Indemnifying Party from any of that Person’s claims to indemnification pursuant to Section 7.02, its obligations under this Article IX except to the extent that the Indemnifying Party is materially prejudiced by such failure.
(ib) If the Indemnifying Party acknowledges in writing its obligation to indemnify the Purchaser Indemnitee against any and all Losses that may result from a Third Party Claim pursuant to the terms of this Agreement, the Indemnifying Party shall have the right, upon written notice to the Purchaser Indemnitee within ten (10) days of receipt of notice from the Purchaser Indemnitee of the commencement of such failure or delay in giving notice causes Third Party Claim, to assume the amounts paid or to defense thereof at the expense of the Indemnifying Party (which expenses shall not be paid applied against any indemnity limitation herein) with counsel selected by the Indemnifying Party and satisfactory to the Purchaser Indemnitee. The Indemnifying Party shall be greater than they liable for the fees and expenses of counsel employed by the Purchaser Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party does not expressly elect to assume the defense of such Third Party Claim within the time period and otherwise would in accordance with the first sentence of this Section, the Purchaser Indemnitee shall have the sole right to assume the defense of and to settle such Third Party Claim. If the Indemnifying Party assumes the defense of such Third Party Claim, the Purchaser Indemnitee shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Purchaser Indemnitee unless (i) the employment of such counsel shall have been or otherwise results specifically authorized in prejudice to writing by the Indemnifying Party or (ii) such notice is not delivered the named parties to the Third Party Claim (including any impleaded parties) include both the Purchaser Indemnitee and the Indemnifying Party, and the Purchaser Indemnitee reasonably determines that representation by counsel to the Indemnifying Party prior to of both the expiration Indemnifying Party and such Purchaser Indemnitee may present such counsel with a conflict of the applicable survival period set forth in Section 7.01interest. If the Indemnified Claim arises from Indemnifying Party assumes the assertion defense of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any the Purchaser Indemnitee shall, at the Indemnifying Party’s expense, cooperate with the Indemnifying Party in such notice defense and make available to the Indemnifying Party shall be accompanied all witnesses, pertinent records, materials and information in the Purchaser Indemnitee’s possession or under its control relating thereto as is reasonably required by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), Indemnifying Party. If the Indemnifying Party will be entitled to assume assumes the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a any Third Party Claim, the Indemnifying Party shall not be liable not, without the prior written consent of the Purchaser Indemnitee, enter into any settlement or compromise or consent to the entry of any judgment with respect to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided if such settlement, compromise or judgment (i) involves a finding or admission of wrongdoing, (ii) does not include an unconditional written release by the claimant or plaintiff of the Purchaser Indemnitee from all liability in this Section 7.03, the Indemnified Person shall have the right to defend respect of such Third Party Claim, subject to Claim or (iii) imposes equitable remedies or any obligation on the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether Purchaser Indemnitee other than solely the Indemnifying Party or payment of money damages for which the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party ClaimPurchaser Indemnitee will be indemnified hereunder.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment indemnification required hereunder in respect of any a Third Party Claim shall be consented made by prompt payment by the Indemnifying Party of the amount of Losses in connection therewith, as and when bills are received by the Indemnifying Party or Losses incurred have been notified to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the No Indemnifying Party shall be subrogated, entitled to the extent of such payment, to all rights and remedies of the Indemnified require that any action be made or brought against any other Person to any insurance benefits before action is brought or other claims or benefits of the Indemnified Person with respect to such claimclaim is made against it hereunder by a Purchaser Indemnitee.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that Notwithstanding the provisions of Section 5.02(b) shall apply 9.3(b), each Indemnifying Party hereby consents to the ASBCA Matter. With nonexclusive jurisdiction of any court in which an action in respect to the of a Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree is brought against any Purchaser Indemnitee for purposes of any claim that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments a Purchaser Indemnitee may have under this Agreement with respect to such action or the matters alleged therein and agrees that process may be served on the Indemnifying Party with respect to such claim anywhere.
(f) In the event any Purchaser Indemnitee should have a claim against an Indemnifying Party hereunder that does not involve a Third Party Claim and all Proceedings relating theretobeing asserted against or sought to be collected from such Purchaser Indemnitee, including the defense Purchaser Indemnitee shall deliver notice of claims in respect thereof by Mission Support Alliancesuch claim with reasonable promptness to the Indemnifying Party. The failure to provide such notice, LLChowever, shall consult with Parent regarding not release the Indemnifying Party from any material developments of its obligations under this Article IX except to the extent that the Indemnifying Party is materially prejudiced by such failure and decisions shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Purchaser Indemnitee or otherwise than pursuant to this Article IX.
(g) If the Indemnifying Party does not notify the Purchaser Indemnitee within ten (10) days following the Indemnifying Party’s receipt of an Indemnification Claim that the Indemnifying Party disputes its liability thereunder, the claim specified in such Indemnification Claim shall be conclusively deemed a liability of the Indemnifying Party hereunder and shall be paid upon demand of the Purchaser Indemnitee by the Indemnifying Party or by the Escrow Agent pursuant to the Escrow Agreement, as applicable. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed in the defense Indemnification Claim, such lesser amount shall be conclusively deemed a liability of the MSA Matter Indemnifying Party hereunder and shall consider in good faith the views of Parent in respect be paid upon demand of the MSA Matter. Neither Spinco nor any Spinco Indemnified Purchaser Indemnitee by the Indemnifying Party shall consent or agree to any settlement or entry of judgment with respect by Escrow Agent pursuant to the MSA Matter (including through any approval of Escrow Agreement, as applicable, without prejudice to or consent to any action waiver of the MSA joint ventureIndemnified Party’s claim for the difference. If the Indemnifying Party notifies the Purchaser Indemnitee in writing within ten (10) without days following the express written consent Indemnifying Party’s receipt of Parentan Indemnification Claim that the Indemnifying Party disputes all or a portion of its liability thereunder, such consent not either party may seek to resolve the matter in accordance with the terms of Section 10.12 hereof; provided however, that the fourteen (14) day period referred to in Section 10.12(b) shall be unreasonably withheld, conditioned or delayedreduced to five (5) days.
Appears in 1 contract
Procedures. (ai) If Except as otherwise provided in this Agreement, any Parent Indemnified Party shall seek party seeking any indemnification pursuant to under this Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification 10.2 (the an “Indemnified PersonParty”) shall give written notice to the Party party from whom such indemnification is being sought (the an “Indemnifying Party”) promptly (and in notice of any event within 10 days) matter which such Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement as soon as practicable after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) party potentially entitled to indemnification becomes aware of the facts giving any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 10.2.
(ii) The liability of an Indemnifying Party under this Section 12.2 with respect to Damages arising from claims of any third party which are subject to the indemnification provided for in this Section 12.2 (“Third Party Claims”) shall be governed by and contingent upon the following additional terms and conditions. If an Indemnified Party shall receive notice of any Third Party Claim, the Indemnified Party shall give the Indemnifying Party notice of such claim for indemnification Third Party Claim within twenty (an “20) days of the receipt by the Indemnified Claim”)Party of such notice; provided, which however, that the failure to provide such notice shall specify in reasonable detail not release the factual basis Indemnifying Party from any of its obligations under this Section 12.2 except to the extent the Indemnifying Party is materially and irreparably prejudiced by such failure. The Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it acknowledges, without qualification, its indemnification obligations hereunder and gives notice of its intention to do so to the Indemnified Party within thirty (30) days of the receipt of such notice from the Indemnified ClaimParty; provided, state however, that if there exists a material conflict of interest (other than one that is of a monetary nature) that would make it inappropriate for the amount of Damages (or if not knownsame counsel to represent both the Indemnified Party and the Indemnifying Party, a good faith estimate then the Indemnified Party shall be entitled to retain its own counsel, at the expense of the amount of Damages) and Indemnifying Party, provided, that the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, Indemnifying Party shall not constitute a waiver be obligated to pay the reasonable fees and expenses of that Person’s claims to indemnification pursuant to Section 7.02more than one separate counsel for all Indemnified Parties, taken together (except to the extent that (i) any local counsel are necessary or advisable for the conduct of such failure action or delay proceeding, in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to which case the Indemnifying Party shall be accompanied by a copy also pay the reasonable fees and expenses of any papers theretofore served on such local counsel). If the Indemnifying Party shall not assume the defense of any Third Party Claim or delivered to litigation resulting therefrom, the Indemnified Person Party may defend against such claim or litigation in connection with such Third Party Claim.
(b) manner as it may deem appropriate and may settle such claim or litigation on such terms as it may deem appropriate; provided, however, that in settling any action in respect of which indemnification is payable under this Article, it shall act reasonably and in good faith. In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the Indemnifying Party will be entitled exercises the right to assume the undertake any such defense and control of against any such Third Party Claim subject as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the provisions of this Section 7.03(b). After written notice Indemnifying Party, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party to Party. Similarly, in the event the Indemnified Person of its election to assume Party is, directly or indirectly, conducting the defense and control of a against any such Third Party Claim, the Indemnifying Party shall not be liable to cooperate with the Indemnified Party in such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 defense and make available to the contraryIndemnified Party, until all such time as witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. The Indemnifying Party assumes shall not, without the defense and control written consent of a the Indemnified Party, (i) settle or compromise any Third Party Claim as provided in this Section 7.03, or consent to the entry of any judgment which does not include an unconditional written release by the claimant or plaintiff of the Indemnified Person shall have the right to defend Party from all liability in respect of such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party (ii) settle or the Indemnified Person is defending and controlling compromise any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were if the settlement imposes equitable remedies or material obligations on the Indemnified Party other than financial obligations for its own account and shall act which such Indemnified Party will be indemnified hereunder, or (iii) settle or compromise any Third Party Claim if the result is to admit civil or criminal liability or culpability on the part of the Indemnified Party or that gives rise to criminal liability with respect to the Indemnified Party. No Third Party Claim which is being defended in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with by the Indemnifying Party in connection accordance with any Third Party Claim.
(c) The Indemnifying Party the terms of this Agreement shall be authorized to consent to a settlement of, settled or the entry of any judgment arising from, any Third Party Claims, and compromised by the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Samples: Series C Preferred Stock Subscription Agreement (Inland Western Retail Real Estate Trust Inc)
Procedures. (a) A party making a claim for indemnity under Section 8.02 is hereinafter referred to as an "INDEMNIFIED PARTY" and the party against whom such claim is asserted is hereinafter referred to as the "INDEMNIFYING PARTY." All claims by any Indemnified Party under Section 8.02 hereof shall be asserted and resolved in accordance with the following provisions. If any Parent claim or demand for which an Indemnifying Party would be liable to an Indemnified Party is asserted against or sought to be collected from such Indemnified Party by a third party, said Indemnified Party shall seek indemnification pursuant to Section 7.02(a), with reasonable promptness notify in writing the Indemnifying Party of such claim or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), demand stating with reasonable specificity the Person seeking indemnification (the “Indemnified Person”) shall give written notice to the Party from whom such indemnification is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director circumstances of the Indemnified Person) becomes aware of the facts giving rise to such Party's claim for indemnification (an “Indemnified Claim”)indemnification; provided, which however, that any failure to give such notice shall specify in reasonable detail the factual basis will not waive any rights of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, Party except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by rights of the Indemnifying Party to be greater than they otherwise would have been are actually prejudiced or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the extent that any applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any 8.01 has expired without such notice to being given. After receipt by the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the Indemnifying Party will be entitled to assume the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice, then upon reasonable notice by from the Indemnifying Party to the Indemnified Person Party, or upon the request of its election to assume the defense and control of a Third Party ClaimIndemnified Party, the Indemnifying Party shall not defend, manage and conduct any proceedings, negotiations or communications involving any claimant whose claim is the subject of the Indemnified Party's notice to the Indemnifying Party as set forth above, and shall take all actions necessary, including the posting of such bond or other security as may be liable required by any Governmental Authority, so as to enable the claim to be defended against or resolved without expense or other action by the Indemnified Party. Upon request of the Indemnifying Party, the Indemnified Party shall, to the extent it may legally do so and to the extent that it is compensated in advance by the Indemnifying Party for any costs and expenses thereby incurred,
(1) take such action as the Indemnifying Party may reasonably request in connection with such action,
(2) allow the Indemnifying Party to dispute such action in the name of the Indemnified Party and to conduct a defense to such action on behalf of the Indemnified Person for any legal fees or expenses subsequently incurred by Party, or
(3) render to the Indemnifying Party all such Indemnified Person assistance as the Indemnifying Party may reasonably request in connection therewithwith such dispute and defense.
(b) The Shareholder and the Company specifically agree that any claims due and owing for indemnification by the Parent or VGS against the Shareholder and the Company (or any of them) shall be first satisfied by deducting and otherwise offsetting such claims against the Holdback Amount; and to the extent that there remain unsatisfied indemnification claims after the deductions and set-offs described above, the Parent and VGS shall have full recourse against the Shareholder and the Company (including their assets of whatsoever kind or nature) for payment of such indemnification claims. Notwithstanding anything in this Section 7.03 Agreement to the contrary, until such time as the Indemnifying Party assumes Shareholder and the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party Company expressly agree that VGS or the Indemnified Person is defending and controlling Parent may settle or compromise any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were individual claim for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, indemnity they make hereunder to the extent of such payment, to all rights and remedies that the amount of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment compromise is less than or equal to $5,000 and the settlement or compromise does not impose any injunctive relief with respect to the MSA Matter (including through any approval Company or the Shareholder; provided that the aggregate amount of such claims that VGS or consent the Parent may settle or compromise pursuant to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayedforegoing sentence is $50,000.
Appears in 1 contract
Procedures. (a) If any Parent Other than with respect to Tax Losses (which are governed exclusively by Section 8.4), in order for a Buyer Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Seller Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification (the “Indemnified PersonParty”) to be entitled to any indemnification provided for under this Agreement as a result of a Loss or a claim or demand made by any third party against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall give written deliver notice thereof to the Party from party against whom such indemnification indemnity is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) after the receipt by such Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director Party of written notice of the Indemnified Person) becomes aware of Third Party Claim, describing in reasonable detail the facts giving rise to such any claim for indemnification (an “Indemnified Claim”)hereunder, which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount or method of Damages (or if not known, a good faith estimate computation of the amount of Damagessuch claim (if known) and such other information with respect thereto as the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification thereforIndemnifying Party may reasonably request. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, however, shall not constitute a waiver release the Indemnifying Party from any of that Person’s claims to indemnification pursuant to Section 7.02, its obligations under this Article VIII except to the extent that the Indemnifying Party is prejudiced by such failure.
(ib) any The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such failure or delay in giving notice causes Third Party Claim, to assume the amounts paid or to be paid defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnified Party. If the Indemnifying Party or (ii) assumes the defense of such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such notice to counsel shall be at the expense of the Indemnified Party; provided, that if in the reasonable opinion of counsel for the Indemnified Party, there is a conflict of interest between the Indemnified Party and the Indemnifying Party, the Indemnifying Party shall be accompanied by a copy responsible for the reasonable fees and expenses of any papers theretofore served on or delivered one counsel to the such Indemnified Person Party in connection with such defense. If the Third Party Claim is brought by a customer of an Indemnified Party, then the Indemnifying Party and the Indemnified Party shall cooperate in a commercially reasonable manner and jointly defend such Third Party Claim.
(b) In ; provided that in no event shall either the event of receipt of notice of a Third Indemnified Party Claim from an Indemnified Person pursuant to Section 7.03(a), or the Indemnifying Party will be entitled agree to assume the defense and control any settlement or other resolution of such Third Party Claim subject to claim without the provisions prior written consent of this Section 7.03(b)the other party. After written notice by If the Indemnifying Party to the Indemnified Person of its election to assume assumes the defense and control of a any Third Party Claim, the Indemnifying Party shall not be liable to conduct the defense of the Third Party Claim actively and diligently, and the Indemnified Party shall cooperate, at the Indemnifying Party’s sole cost, with the Indemnifying Party in such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 defense and make available to the contraryIndemnifying Party all witnesses, until such time pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and control that by its terms obligates the Indemnifying Party to pay the full amount of the Liability in connection with such Third Party Claim, does not subject the Indemnified Party to any injunctive or non-monetary relief, does not require an admission of wrongdoing on the part of the Indemnified Party, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim as provided Claim, the Indemnified Party shall not admit any Liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim, other than with respect to a customer of any Company upon the terms set forth in this Section 7.038.5(b), without the Indemnifying Party’s prior written consent.
(c) Notwithstanding anything to the contrary set forth herein, with respect to the Sellers’ indemnification obligations set forth in Section 8.2(g) and Section 8.2(h), the Indemnified Person Sellers shall have the right to defend control and direct in their sole discretion any and all investigation, preparation, response, defense, resolution, settlement, remediation and any other action or non-action in connection therewith. The Buyer Indemnified Parties shall provide any and all cooperation, assistance, access to documents, records, personnel, facilities and other information and as the Sellers may reasonably request in connection with such Third Party Claimefforts; the Sellers shall pay the Buyer Indemnified Parties’ reasonable out-of-pocket costs and expenses in connection with such cooperation and assistance; provided that in no event shall the Sellers pay any indirect costs, subject including any reputational costs or allocations for the time expended by personnel of any Buyer Indemnified Party, in providing such assistance. The Sellers shall not agree to any settlement, compromise or discharge with respect to any such matter unless such settlement, compromise or discharge by its terms obligates the limitations Sellers to pay the full amount of the Liability (other than those Liabilities set forth in this Section 7.03the proviso of the immediately preceding sentence) in connection therewith, does not subject the Buyer or any of its Subsidiaries (including the Company and their Subsidiaries) to any injunctive or non-monetary relief, does not require an admission of wrongdoing on the part the Buyer or any of its Subsidiaries (including the Company and their Subsidiaries), and releases the Buyer and its Subsidiaries (including the Company and their Subsidiaries) completely in connection such manner matters.
(d) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim promptly to the Indemnifying Party, describing in reasonable detail the facts giving rise to any claim for indemnification hereunder, the amount or method of computation of the amount of such claim (if known) and such other information with respect thereto as it may deem appropriate. Without regard to whether the Indemnifying Party or may reasonably request. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article VIII except to the extent that the Indemnifying Party is prejudiced by such failure. The Indemnified Party shall reasonably cooperate, at the Indemnifying Party’s sole cost, and assist the Indemnifying Party in determining the validity of any claim for indemnity by the Indemnified Person is defending Party and controlling any in otherwise resolving such Third Party Claimmatters. Such assistance and cooperation shall include providing reasonable access to and copies of information, it shall select counselrecords and documents relating to such matters, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary furnishing employees to assist in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights matters and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person providing legal and business assistance with respect to such claimmatters.
(e) Without limiting For the provisions avoidance of doubt, nothing in this Section 7.038.5, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”)Tax Losses, the Parties acknowledge and agree that the Spinco Indemnified Parties which shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof be governed exclusively by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayedSection 8.4.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Pitney Bowes Inc /De/)
Procedures. (a) If any Parent Subject to Section 8.2(b) below, if an Indemnified Party shall seek indemnification claim a right to payment pursuant to Section 7.02(a)this Article 8, or if any Spinco such Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification (the “Indemnified Person”) shall give send written notice of such claim to the Party from whom such indemnification is sought (the “Indemnifying Party”) . Such notice shall specify the basis for such claim. As promptly (and in any event within 10 days) as possible after the Indemnified Person Party has given such notice, such Indemnified Party and the Indemnifying Party shall establish the merits and amount of such claim (orby mutual agreement, if litigation, arbitration or otherwise) and, within five business days of the final determination of the merits and amount of such claim, the Indemnifying Party shall pay to the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise Party immediately available funds in an amount equal to such claim for indemnification as determined hereunder.
(an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damagesb) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of Promptly after receipt by an Indemnified Person to provide Party of notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute by a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion third party of any claim, complaint or the commencement of any Proceedingaction or proceeding with respect to which such Indemnified Party may be entitled to receive payment from the other party for any Losses, brought such Indemnified Party shall notify the Indemnifying Party within 20 days of such complaint or of the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Alliance Agreement with respect to such claim only if, and only to the extent that, such failure results in the forfeiture by a Person that is not a Parent Company or a Spinco Company (a “Third the Indemnifying Party Claim”), any such notice of rights and defenses otherwise available to the Indemnifying Party with respect to such claim. The Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or have the right, upon written notice delivered to the Indemnified Person in connection with such Third Party Claim.
within 30 days thereafter (b) In the event which written notice must include a binding acknowledgment of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the Indemnifying Party will be entitled that such claim constitutes an indemnifiable Loss hereunder), to assume the defense and control of such Third Party Claim subject action, including the employment of counsel reasonably satisfactory to the provisions Indemnified Party and the payment of this Section 7.03(b)the fees and disbursements of such counsel. After written notice by If the Indemnifying Party to the Indemnified Person of its election declines to assume the defense of the action within such 30-day period, then such Indemnified Party may employ counsel to represent or defend it in any such action and control the Indemnifying Party shall pay the reasonable fees and disbursements of a Third Party Claimsuch counsel as incurred; provided, however, that the Indemnifying Party shall not be liable required to such pay the fees and disbursements of more than one counsel for all Indemnified Person for Parties in any legal fees jurisdiction in any single action or expenses subsequently incurred by such Indemnified Person in connection therewithproceeding. Notwithstanding anything in this Section 7.03 In any action with respect to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03which indemnification is being sought hereunder, the Indemnified Person Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.03, participate in such manner litigation and to retain its own counsel at such party's own expense. The Indemnifying Party or the Indemnified Party, as it the case may deem appropriate. Without regard be, shall at all times use reasonable efforts to whether keep the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party ClaimParty, it shall select counselas the case may be, contractors, experts and consultants reasonably apprised of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting status of the defense thereof shall at all times act as if all Damages relating of any action the defense of which they are maintaining and to the Third Party Claim were for its own account and shall act cooperate in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through defense of any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayedaction.
Appears in 1 contract
Samples: Strategic Alliance Agreement (Rollins Truck Leasing Corp)
Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant A Person that may be entitled to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification be indemnified under this Agreement (the “Indemnified PersonParty”) ), shall give written notice to promptly notify the Party from whom party or parties liable for such indemnification is sought (the “Indemnifying Party”) promptly (and in writing of any event within 10 days) after pending or threatened claim or demand that the Indemnified Person (or, if the Indemnified Person is a corporation, any officer Party has determined has given or director of the Indemnified Person) becomes aware of the facts giving would reasonably be expected to give rise to such claim for right of indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of including a pending or threatened claim or demand asserted by a third party against the Indemnified ClaimParty, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (claim being a “Third Party Claim”), any describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim or demand; provided, that the failure to provide such notice to shall not release the Indemnifying Party shall from any of its obligations under this Article IX except to the extent the Indemnifying Party is materially and adversely prejudiced by such failure. Notices for claims in respect of a breach of a representation, warranty, covenant or agreement must be accompanied by a copy delivered prior to the expiration of any papers theretofore served on applicable survival period specified in Section 9.1 for such representation, warranty, covenant or delivered to the Indemnified Person in connection with such Third Party Claimagreement.
(b) In the event of Upon receipt of a notice of a Third Party Claim for indemnity from an Indemnified Person Party pursuant to Section 7.03(a9.2(a) or Section 9.3(a), the Indemnifying Party will be entitled entitled, by notice to the Indemnified Party delivered within 10 Business Days of the receipt of notice of such Third Party Claim, to assume the defense and control of such Third Party Claim subject to (at the provisions expense of this Section 7.03(bsuch Indemnifying Party). After written notice by ; provided, that the Indemnifying Party to shall allow the Indemnified Person Party a reasonable opportunity to participate in the defense of such Third Party Claim with its own counsel and at its own expense. If the Indemnifying Party (i) fails to promptly notify the Indemnified Party in writing of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in pursuant to this Section 7.039.4(b), (ii) fails to diligently prosecute the Indemnified Person shall have the right to defend defense of such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified (iii) is also a Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to against whom the Third Party Claim were for its own account is made and shall act the Indemnified Party determines in good faith that joint representation would be inappropriate and promptly notifies the Indemnifying Party of such determination, (iv) receives notice from the Indemnified Party that the Third Party Claim is with a current material customer, material supplier or employee of the Industrial Wood Business or (v) receives notice from the Indemnified Party that such Indemnified Party has determined in good faith that there is a reasonable prudence probability that a Third Party Claim may adversely affect it or its Affiliates other than as a result of monetary damages for which it would be entitled to minimize Damages therefromindemnification under this Agreement, then in each case, the Indemnified Party shall be entitled to assume and control such defense, but the Indemnifying Party may nonetheless participate in the defense of such Third Party Claim with its own counsel and at its own expense. The Indemnified Person Purchaser or Seller, as the case may be, shall, and shall cause each of its Affiliates and Representatives to, reasonably cooperate fully with the Indemnifying Party in connection with the defense of any Third Party Claim.
(c) The , including by furnishing books and records, personnel and witnesses, as appropriate for any defense of such Third Party Claim. If the Indemnifying Party has assumed the defense and control of a Third Party Claim, it shall be authorized to consent to a settlement or compromise of, or the entry of any judgment arising from, any Third Party Claims, and Claim only with the prior written consent of the Indemnified Person Party (which consent shall not be unreasonably withheld, conditioned or delayed); provided, that, if such settlement or judgment (i) provides solely for the payment of monetary damages borne solely by the Indemnifying Party and does not involve any injunctive relief or finding or admission of any violation of Law or admission of any wrongdoing by any Indemnified Party and (ii) releases the Indemnified Party completely in connection with such Third Party Claim, the Indemnifying Party shall be authorized to consent to a such settlement ofor judgment, or in its sole discretion and without the consent of any Indemnified Party. No Indemnified Party will consent to the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber or enter into any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as compromise with respect to a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express prior written consent of the Indemnifying Party.
(dc) If an Indemnifying Party makes any payment on an Indemnified ClaimNotwithstanding the foregoing, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
any Third Party Claim relating solely to Taxes imposed with respect to the Purchased Assets or Industrial Wood Business for a Tax period ending on or prior to the Closing Date, Seller shall control all proceedings at its own expense. (e) Without limiting For the provisions avoidance of this Section 7.03doubt, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(bprevious sentence pertain only to Taxes for Pre-Closing Periods for which Seller would be solely responsible.) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect Claims relating to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment Taxes imposed with respect to the MSA Matter Purchased Assets or Industrial Wood Business for a Straddle Period (including through i) to the extent possible, Tax liabilities will be distinguished and each party shall control the defense and settlement of those Taxes for which it is so liable, and (ii) to the extent a Tax liability cannot be so attributed, the party that has the greater potential liability shall control the defense and settlement; provided that, in each case, the other party shall have the right to participate in such proceedings (at its own expense). Purchaser shall control at its own expense all Tax Proceedings relating to Taxes imposed with respect to the Purchased Assets or Industrial Wood Business for a Tax period beginning after the Closing Date. A party shall promptly notify the other party if it decides not to control the defense or settlement of any approval of Tax Proceeding which it is entitled to control pursuant to this Section 9.4(c), and the other party shall thereupon be permitted to defend and settle such Tax Proceeding at its own expense.
(d) Notwithstanding anything to the contrary herein, no control, participation or consent other rights shall be granted hereby to Seller or Purchaser with respect to any action Tax Proceedings relating to income Tax Returns. Each of Seller and Purchaser (and their respective Affiliates) shall have the MSA joint venture) without the express written consent of Parent, exclusive right to control such consent not to be unreasonably withheld, conditioned or delayedTax Proceedings in all respects.
Appears in 1 contract
Samples: Asset Purchase Agreement (Axalta Coating Systems Ltd.)
Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the In order for a Person seeking indemnification (the “Indemnified Person”) shall give written notice to the Party from whom such indemnification is sought (the “Indemnifying Party”) promptly (and to be entitled to any indemnification provided for under Section 7.01 in respect of, arising out of or involving a claim made by any event within 10 days) after Person not a party hereto against the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), such Indemnified Party must notify the indemnifying party hereunder (the “Indemnifying Party”) in writing of such Third Party Claim (setting forth in reasonable detail the facts giving rise to such Third Party Claim (to the extent known by the Indemnified Party) and the amount or estimated amount (to the extent reasonably estimable) of Losses arising out of such Third Party Claim) promptly (and in any event within five Business Days) after receipt by such Indemnified Party of notice of such Third Party Claim. Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, promptly (and in any event within ten Business Days) after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party to the extent relating to the Third Party Claim; provided that the failure to so notify an Indemnifying party or to deliver copies of notices of documents to the Indemnifying party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that (and only to the extent that) the Indemnifying Party has been materially prejudiced thereby.
(b) If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party shall be accompanied entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party. If the Indemnifying Party assumes the defense of a copy of any papers theretofore served on or delivered Third Party Claim in accordance with this Section 7.03(b), the Indemnifying Party shall not be liable to the Indemnified Person Party for any legal expenses incurred by the Indemnified Party in connection with the defense thereof. Any such participation or assumption shall not constitute a waiver by any party of any attorney-client privilege in connection with such Third Party Claim.
(b) In . If the event of receipt of notice Indemnifying Party assumes the defense of a Third Party Claim from an Indemnified Person pursuant to in accordance with this Section 7.03(a7.03(b), the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party will be entitled shall control such defense. If the Indemnifying Party chooses to assume defend or prosecute a Third Party Claim, all the Indemnified Parties shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and control (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information that are reasonably relevant to such Third Party Claim, and making employees reasonably available at such times and places as may be reasonably necessary to defend against such Third Party Claim subject to for the provisions purpose of this Section 7.03(b)providing additional information, explanation or testimony in connection with such Third Party Claim. After written notice by Whether or not the Indemnifying Party to assumes the defense of a Third Party Claim, the Indemnified Person of its election 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 (such consent not to assume be unreasonably withheld, conditioned or delayed). If the Indemnifying Party assumes the defense and control of a Third Party Claim, the Indemnifying Party shall not settle such Third Party Claim without the consent of the Indemnified Party (which consent shall not be liable to such Indemnified Person for any legal fees unreasonably withheld, conditioned or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrarydelayed), until such time as except that the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend settle such Third Party ClaimClaim without the consent of the Indemnified Party if such settlement (i) does not involve any admission by the Indemnified Party of any violation of criminal Law, subject to (ii) involves solely the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether payment of money damages by the Indemnifying Party or and does not involve any relief against the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereofParty, and shall diligently and promptly pursue (iii) provides a complete release of the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any such Third Party Claim.
(c) The In the event any Indemnified Party has a claim against any Indemnifying Party shall be authorized to consent to under Section 7.01 that does not involve a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnified Party shall deliver notice of such claim to the applicable Indemnifying Party shall be subrogated, (setting forth in reasonable detail the facts giving rise to such claim (to the extent known by the Indemnified Party) and the amount or estimated amount (to the extent reasonably estimable) of Losses arising out of such payment, to all rights claim) promptly (and remedies in any event within ten Business Days) after becoming aware of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree ; provided that the provisions failure to so notify an Indemnifying party shall not relieve the Indemnifying Party of Section 5.02(b) shall apply its obligations hereunder except to the ASBCA Matter. With respect extent that (and only to the Third extent that) the Indemnifying Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayedhas been materially prejudiced thereby.
Appears in 1 contract
Samples: Unit Purchase Agreement (Allscripts Healthcare Solutions, Inc.)
Procedures. (ai) Except as otherwise provided in this Agreement, any party seeking any indemnification under this Section 9.2 (an "Indemnified Party") shall give the party from whom indemnification is being sought (an "Indemnifying Party") notice (and also to the Agent in the case of claims against the Escrow Fund or any Manager Shareholder) of any matter which such Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement as soon as practicable after the party potentially entitled to indemnification becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 9.2. With respect to any claims for indemnification under this Section 9.2 by an Inland Indemnified Party, IREIC (with respect to the Advisor) or the Agent (with respect to each Manager Shareholder and the Participating Shareholders) shall have sole and exclusive authority to act for and in the name of such Indemnified Party. With respect to any claims for indemnification under this Section 9.2 by a REIT Indemnified Party, IREIC (with respect to the Advisor) or the Agent (with respect to each Manager Shareholder and the Participating Shareholders) shall have sole and exclusive authority to act for and in the name of such Indemnifying Party.
(ii) The liability of an Indemnifying Party under this Section 9.2 with respect to Damages arising from claims of any third party which are subject to the indemnification provided for in this Section 9.2 ("Third Party Claims") shall be governed by and contingent upon the following additional terms and conditions. If any Parent an Indemnified Party shall seek indemnification pursuant to Section 7.02(a)receive notice of any Third Party Claim, or if any Spinco the Indemnified Party shall seek indemnification pursuant give the Indemnifying Party notice of such Third Party Claim within twenty (20) days of the receipt by the Indemnified Party of such notice; provided, however, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Section 7.02(b), the Person seeking indemnification (the “Indemnified Person”) shall give written notice 9.2 except to the extent the Indemnifying Party is materially and irreparably prejudiced by such failure. The Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it acknowledges, without qualification, its indemnification obligations hereunder and gives notice of its intention to do so to the Indemnified Party within thirty (30) days of the receipt of such notice from whom such indemnification the Indemnified Party; provided, however, that if there exists a material conflict of interest (other than one that is sought (of a monetary nature) that would make it inappropriate for the “same counsel to represent both the Indemnified Party and the Indemnifying Party”) promptly (and in any event within 10 days) after , then the Indemnified Person (orParty shall be entitled to retain its own counsel, if at the Indemnified Person is a corporation, any officer or director expense of the Indemnified Person) becomes aware of Indemnifying Party, provided that the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, Indemnifying Party shall not constitute a waiver be obligated to pay the reasonable fees and expenses of that Person’s claims to indemnification pursuant to Section 7.02more than one separate counsel for all Indemnified Parties, taken together (except to the extent that (i) any local counsel are necessary or advisable for the conduct of such failure action or delay proceeding, in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to which case the Indemnifying Party shall be accompanied by a copy also pay the reasonable fees and expenses of any papers theretofore served on such local counsel). If the Indemnifying Party shall not assume the defense of any Third Party Claim or delivered to litigation resulting therefrom, the Indemnified Person Party may defend against such claim or litigation in connection with such Third Party Claim.
(b) manner as it may deem appropriate and may settle such claim or litigation on such terms as it may deem appropriate; provided, however, that in settling any action in respect of which indemnification is payable under this Article, it shall act reasonably and in good faith. In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the Indemnifying Party will be entitled exercises the right to assume the undertake any such defense and control of against any such Third Party Claim subject as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the provisions of this Section 7.03(b). After written notice Indemnifying Party, all witnesses, pertinent records, materials and information in the Indemnified Party's possession or under the Indemnified Party's control relating thereto as is reasonably required by the Indemnifying Party to Party. Similarly, in the event the Indemnified Person of its election to assume Party is, directly or indirectly, conducting the defense and control of a against any such Third Party Claim, the Indemnifying Party shall not be liable to cooperate with the Indemnified Party in such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 defense and make available to the contraryIndemnified Party, until all such time as witnesses, records, materials and information in the Indemnifying Party's possession or under the Indemnifying Party's control relating thereto as is reasonably required by the Indemnified Party. The Indemnifying Party assumes shall not, without the defense and control written consent of a the Indemnified Party, (i) settle or compromise any Third Party Claim as provided in this Section 7.03, or consent to the entry of any judgment which does not include an unconditional written release by the claimant or plaintiff of the Indemnified Person shall have the right to defend Party from all liability in respect of such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party (ii) settle or the Indemnified Person is defending and controlling compromise any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were if the settlement imposes equitable remedies or material obligations on the Indemnified Party other than financial obligations for its own account and shall act which such Indemnified Party will be indemnified hereunder, or (iii) settle or compromise any Third Party Claim if the result is to admit civil or criminal liability or culpability on the part of the Indemnified Party or that gives rise to criminal liability with respect to the Indemnified Party. No Third Party Claim which is being defended in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with by the Indemnifying Party in connection accordance with any Third Party Claim.
(c) The Indemnifying Party the terms of this Agreement shall be authorized to consent to a settlement of, settled or the entry of any judgment arising from, any Third Party Claims, and compromised by the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Samples: Merger Agreement (Inland Retail Real Estate Trust Inc)
Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant Any Person entitled to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification be indemnified under this Article IX (the “Indemnified PersonParty”) shall promptly give written notice to the Party from whom such indemnification is may be sought (the “Indemnifying Party”) promptly (and in of any event within 10 days) after pending or threatened Proceeding against the Indemnified Person (or, if the Indemnified Person is a corporation, any officer Party that has given or director of the Indemnified Person) becomes aware of the facts giving would reasonably be expected to give rise to such claim for right of indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference with respect to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company Proceeding (a “Third Party Claim”), indicating, with reasonable specificity, the nature of such Third Party Claim, the basis therefor, a copy of any documentation received from the third party, the amount and calculation of the Covered Losses for which the Indemnified Party is entitled to indemnification under this Article IX (and, to the extent known, a good faith estimate of any such notice future Covered Losses relating thereto), and the provision(s) of this Agreement in respect of which such Covered Losses shall have occurred (a “Third Party Claim Notice”), and the Indemnified Party shall promptly deliver to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on information or delivered documentation related to the foregoing reasonably requested by the Indemnifying Party. A failure by the Indemnified Person in connection with such Party to give a Third Party ClaimClaim Notice and to tender the defense of the Proceeding in a timely manner pursuant to this Section 9.4(a) shall not limit the obligations of the Indemnifying Party under this Article IX, except to the extent that such Indemnifying Party is prejudiced thereby.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant With respect to Section 7.03(a), the Indemnifying Party will be entitled to assume the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a any Third Party Claim, the Indemnifying Party under this Article IX shall have the right, but not the obligation, to assume the control and defense, at its own expense and by counsel of its own choosing, of such Third Party Claim and any Third Party Claims related to the same or a substantially similar set of facts; provided that the Indemnifying Party shall not be liable entitled to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to assume the contrary, until such time as the Indemnifying Party assumes the control and defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim, subject to and shall pay the limitations set forth in this Section 7.03reasonable fees and expenses of counsel retained by the Indemnified Party, in if such manner as it may deem appropriateThird Party Claim is a criminal Proceeding. Without regard to whether If the Indemnifying Party or the Indemnified Person is defending so undertakes to control and controlling defend any such Third Party Claim, it shall select counsel, contractors, experts and consultants notify the Indemnified Party of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereofits intention to do so, and the Indemnified Party shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party and its counsel in connection with the defense against, and settlement of, any such Third Party Claim.
(c) The ; provided, however, that the Indemnifying Party shall be authorized to consent to a settlement of, or the entry of not settle any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed) unless such settlement does not involve any injunctive relief against or any finding or admission of any violation of Law or wrongdoing by the Indemnified Party, and any money damages are borne solely by the Indemnifying Party. Subject to the foregoing, the Indemnified Party shall have the right to employ separate legal counsel and to participate in, but not control, the defense of such Proceeding at its own cost and expense; provided that, subject to the provisions of this Article IX, the Indemnifying Party shall bear the reasonable fees of one firm of legal counsel (and one additional firm of legal counsel in each jurisdiction implicated in such Proceeding) representing all Indemnified Parties in such Proceeding and all related Proceedings, if, but only if, the defendants in such Proceeding include both an Indemnified Party and the Indemnifying Party, and such Indemnified Party shall have reasonably concluded, based on the advice of legal counsel, that there is a material conflict of interest between the Indemnifying Party and the Indemnified Party with respect to such Proceeding. In any event, the Indemnified Party shall cause its legal counsel to cooperate with the Indemnifying Party and its legal counsel and shall not assert any position in any Proceeding inconsistent with that asserted by the Indemnifying Party. No Indemnified Party may settle any Third Party Claim without the written consent of the Indemnifying Party (not to be unreasonably withheld, conditioned or delayed). If the Indemnifying Party does not assume the control and defense of a Third Party Claim, it shall nevertheless be entitled to participate in the defense of such Proceeding at its own cost and expense, and the Indemnified Party shall cooperate fully with the Indemnifying Party and its counsel in the defense against, and settlement of, any such Third Party Claim.
(c) In the event that any Indemnified Party has or may have an indemnification claim against any Indemnifying Party under this Article IX that does not involve a Third Party Claim, the Indemnified Party shall promptly give written notice thereof to the Indemnifying Party indicating, with reasonable specificity, the nature of such claim, the basis therefor, the amount and calculation of the Covered Losses for which the Indemnified Party is entitled to indemnification under this Article IX to the extent known (and a good-faith estimate of any such future Covered Losses relating thereto), and the provision(s) of this Agreement in respect of which such Covered Losses shall have occurred (a “Self-Claim Notice”), and the Indemnified Party shall promptly deliver to the Indemnifying Party any information or documentation related to the foregoing reasonably requested by the Indemnifying Party. A failure by the Indemnified Party to give notice in a timely manner pursuant to this Section 9.4(c) shall not limit the obligations of the Indemnifying Party under this Article IX, except to the extent that such Indemnifying Party is prejudiced thereby. If the Indemnifying Party disputes its liability with respect to such claim, the Indemnifying Party and the Indemnified Party shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations, such dispute shall be resolved by litigation in the appropriate court of competent jurisdiction set forth in Section 10.8.
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Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person The party seeking indemnification under Section 9.02 (the “Indemnified PersonParty”) shall agrees to give written prompt notice to the Party from party against whom such indemnification indemnity is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceedingsuit, brought action or proceeding in respect of which indemnity may be sought under such Section stating the amount of the Damages, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises, and agrees to provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in the defense of any claim asserted by a Person that is not a Parent Company or a Spinco Company any third party (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the Indemnifying Party will be entitled to assume the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claimand, subject to the limitations set forth in this Section 7.039.03, shall be entitled to control and appoint lead counsel for such defense, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall each case at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claimexpense.
(c) The Indemnifying Party shall be authorized have the right to consent to a settlement of, or control the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect defense of any Third Party Claim shall be consented in accordance with the provisions of this Section 9.03, with counsel of its choice reasonably satisfactory to by any the Indemnified Person without Party, so long as (i) the express written consent Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice of the Third Party Claim that the Indemnifying PartyParty will indemnify the Indemnified Party from and against any Damages the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim to the full extent required hereunder and with no reservation of rights, (ii) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (iii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, (iv) the Third Party Claim for indemnification does not relate to or arise in connection with any criminal proceeding, action, indictment, allegation or investigation, and (v) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to assume the extent of such payment, to all rights and remedies control of the Indemnified Person to defense of any insurance benefits or other claims or benefits of the Indemnified Person Third Party Claim in accordance with respect to such claim.
(e) Without limiting the provisions of this Section 7.039.03, it is acknowledged and agreed that Parent (i) the Indemnifying Party shall defend and control obtain the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance prior written consent of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(bIndemnified Party (which shall not be unreasonably withheld or delayed) shall apply before consenting to the ASBCA Matter. With respect to the entry of any judgment or entering into any settlement of such Third Party Claim described in Schedule A-17 (if the “MSA Matter”), judgment or settlement does not release the Parties acknowledge Indemnified Party from all liabilities and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments obligations with respect to such Third Party Claim or the judgment or settlement imposes injunctive or other equitable relief against the Indemnified Party and all Proceedings relating thereto, including (ii) the defense of claims in respect thereof by Mission Support Alliance, LLC, Indemnified Party shall consult with Parent regarding any material developments and decisions be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the MSA Matter Indemnified Party, provided, however, that if there exists a conflict of interest (including the availability of one or more legal defenses to the Indemnified Party which are not available to the Indemnifying Party) that would make it inappropriate in the reasonable judgment of the Indemnified Party (upon and shall consider in conformity with advice of counsel) for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party will be entitled to retain one counsel (plus one local counsel, if necessary), reasonably acceptable to the Indemnifying Party, at the expense of the Indemnifying Party, provided that the Indemnified Party and such counsel will contest such Third-Party Claims in good faith the views of Parent in respect of the MSA Matterfaith. Neither Spinco nor any Spinco The Indemnified Party shall obtain the prior written consent of the Indemnifying Party before admitting any liability with respect to, or agree to entering into any settlement or entry of judgment of, any Third Party Claim unless the Indemnified Party waives its rights to indemnification hereunder with respect to such Third Party Claim.
(e) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the MSA Matter (including through defense or prosecution of any approval of Third Party Claim and shall furnish or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not cause to be unreasonably withheldfurnished such witnesses, conditioned records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or delayedappeals, as may be reasonably requested in connection therewith.
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Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Each Person seeking indemnification under this Article 11 (the “Indemnified PersonParty”) shall give prompt written notice to the Party Person from whom such indemnification is sought (the “Indemnifying Party”) promptly of the assertion of any claim or the commencement of any Action by any third party (and in any event within 10 days) after “Third Party Claim”); provided, that the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director failure of the Indemnified PersonParty to give notice as provided in this Section 11.03(a) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver relieve any Indemnifying Party of that Person’s claims to indemnification pursuant to Section 7.02its obligations under Section 11.02, except to the extent that (i) such failure actually and materially adversely prejudices the rights of any such failure or delay Indemnifying Party. Such notice shall set forth in giving notice causes reasonable detail such claim and the amounts paid or basis for indemnification (taking into account the information then available to be paid the Indemnified Party). Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, as promptly as reasonably practicable following the Indemnified Party’s receipt thereof, copies of all written notices and documents (including any court papers) received by the Indemnified Party relating to the Third Party Claim and the Indemnified Party shall provide the Indemnifying Party with such other information with respect to any such Third Party Claim reasonably requested by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Party. The Indemnifying Party or (ii) such notice is not delivered to shall have the Indemnifying Party prior to the expiration right, at its sole option and expense, upon delivery of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such written notice to the Indemnifying Indemnified Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claim.
within twenty (b20) In the event of Business Days after receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the Indemnifying Party will be entitled to assume the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to from the Indemnified Person Party, to be represented by counsel of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claimchoice and, subject to the limitations set forth in this Section 7.03Section 11.03 and Section 11.06 with respect to Environmental Indemnity Matters, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party assume control of, and defend against, negotiate, settle (subject to clause (b)) or the Indemnified Person is defending and controlling any otherwise deal with such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary but the Indemnified Party may nonetheless participate in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the of such Third Party Claim were for with its own account counsel and shall act in good faith and with reasonable prudence to minimize Damages therefromat its own expense. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with If the Indemnifying Party elects not to assume, defend against, negotiate, settle or otherwise deal with any Third Party Claim or any Environmental Indemnity Matter pursuant to this Article 11, then the Indemnified Party may assume, defend against, negotiate, settle (subject to clause (b)) or otherwise deal with such Third Party Claim or Environmental Indemnity Matter, at the Indemnifying Party’s sole cost and expense to the extent such costs and expenses constitute indemnifiable Damages hereunder. If the Indemnifying Party shall assume the defense of any Third Party Claim or the resolution of any Environmental Indemnity Matter pursuant to this Article 11, then the Indemnified Party may participate, at his or its own expense, in the defense of such Third Party Claim or Environmental Indemnity Matter, as applicable; provided, that such Indemnified Party shall be entitled to participate in any such defense with separate counsel at the expense of the Indemnifying Party if (i) requested by the Indemnifying Party to participate, (ii) in the reasonable opinion of counsel to the Indemnifying Party, a material conflict exists between the Indemnified Party and the Indemnifying Party that would make such separate representation advisable; provided, further, that the Indemnified Party shall be entitled to indemnification for the reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof; provided, further, that the Indemnifying Party shall not be required to pay for more than one such counsel for all Indemnified Parties in connection with any Third Party Claim.
(c) The Claim or Environmental Indemnity Matter. Notwithstanding the foregoing, the Indemnifying Party shall not be authorized entitled to consent to a settlement of, assume or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any maintain control of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect defense of any Third Party Claim shall or any Environmental Indemnity Matter pursuant to this Article 11 unless (i) prior to doing so, the Indemnifying Party provides a written undertaking to the Indemnified Party whereby the Indemnifying Party acknowledges that, assuming as true the allegations of the Indemnified Party, it is required to indemnify the Indemnified Party with respect to such Third Party Claim, (ii) the Indemnifying Party conducts the defense of the Third Party Claim in a commercially reasonable and diligent manner and (iii) the Third Party Claim does not relate to Taxes, is not brought by a Governmental Body, does not relate to criminal charges, and the relief sought is not primarily limited to monetary damages or if not so limited, the applicable non-monetary remedy would reasonably be consented expected to by any be material to the Indemnified Person Party and its Affiliates.
(b) Notwithstanding anything in this Section 11.03 to the contrary, neither the Indemnifying Party nor the Indemnified Party shall, without the express written consent of the other party, settle or compromise any Third Party Claim or permit a default or consent to entry of any judgment (in each case, such consent not to be unreasonably withheld, delayed or conditioned). Notwithstanding the foregoing, consent of the Indemnified Party shall not be required for any such settlement if (i) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party (other than, for the avoidance of doubt, the payment of the Deductible to the extent applicable), (ii) such settlement does not permit any Order or other equitable relief to be entered, directly or indirectly, against the Indemnified Party or otherwise impose any sanctions, restrictions or obligations on the Indemnified Party and (iii) such settlement includes an unconditional release of such Indemnified Party from all Liability on claims that are the subject matter of such Third Party Claim and does not include any statement as to or any admission of fault, violation of Applicable Law culpability or failure to act by or on behalf of any Indemnified Party.
(d) . If an the Indemnifying Party makes any payment on an Indemnified Claimany Third Party Claim or in respect of any Environmental Indemnity Matter, then the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person Party to any insurance benefits (other than with respect to the PLL policy unless such subrogation is expressly permitted) or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim or Environmental Indemnity Matter, as applicable.
(c) After any decision, judgment or award shall have been rendered by a Governmental Authority of competent jurisdiction, or a settlement shall have been consummated (in accordance with this Article 11), or the Indemnified Party and all Proceedings relating theretothe Indemnifying Party shall have arrived at a mutually binding agreement with respect to a Third Party Claim hereunder, including the defense Indemnified Party shall forward to the Indemnifying Party notice of claims in any sums due and owing by the Indemnifying Party pursuant to this Agreement with respect thereof by Mission Support Allianceto such matter.
(d) Each party shall cooperate, LLCand cause their respective Affiliates to cooperate, shall consult with Parent regarding any material developments at the sole cost and decisions expense of the Indemnifying Party to the extent such costs and expenses are indemnifiable Damages hereunder, in the defense or prosecution of the MSA Matter any Third Party Claim and shall consider furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in good faith connection therewith.
(e) Notwithstanding anything to the views of Parent contrary in respect of the MSA Matter. Neither Spinco this Section 11.03 or Section 11.04, neither this Section 11.03 nor any Spinco Indemnified Party Section 11.04 shall consent apply to indemnification for a Tax Claim or agree to any settlement or entry of judgment otherwise with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint ventureTax Representations. The procedures for such indemnification shall be governed solely by Section 8.07(d) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayedand (e).
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Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person The party seeking indemnification under Section 11.02 (the “Indemnified PersonParty”) shall agrees to give written prompt notice to the Party from party against whom such indemnification indemnity is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceedingsuit, brought action or proceeding in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in the defense of any claim asserted by a Person that is not a Parent Company or a Spinco Company any third party (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the Indemnifying Party will be entitled to assume the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claimand, subject to the limitations set forth in this Section 7.03Section, shall be entitled, upon written notice to the Indemnified Party, to assume control and appoint lead counsel reasonably acceptable to the Indemnified Party for such defense, in such manner as it may deem appropriate. Without regard to whether each case at the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party ClaimParty’s expense.
(c) The If the Indemnifying Party shall be authorized to consent to a settlement of, or assume the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any control of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect defense of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person in accordance with respect to such claim.
(e) Without limiting the provisions of this Section 7.0311.03, it is acknowledged and agreed that Parent (i) the Indemnifying Party shall defend and control obtain the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance prior written consent of the foregoing, the Parties acknowledge and agree that the provisions Indemnified Party (which shall not be unreasonably withheld) before entering into any settlement of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the such Third Party Claim described in Schedule A-17 (if the “MSA Matter”), settlement does not release the Parties acknowledge Indemnified Party from all liabilities and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments obligations with respect to such Third Party Claim without any payment or covenant by or applicable to the Indemnified Party or the Business or the settlement imposes injunctive or other equitable relief against the Indemnified Party and all Proceedings relating thereto, including (ii) the defense of claims in respect thereof by Mission Support Alliance, LLC, Indemnified Party shall consult with Parent regarding any material developments and decisions be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the MSA Matter Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall consider furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith, provided that the costs and expenses of the Indemnified Party incurred in connection with providing such cooperation shall be borne by the Indemnifying Party.
(e) In the event any Indemnified Party should have a claim under Section 11.02 against any Indemnifying Party that does not involve a Third Party Claim, the Indemnified Party shall deliver a notice specifying the nature of and basis for such claim, together with the amount or, if not then reasonably determinable, the estimated amount, determined in good faith, of the Damages arising from such claim (the “Indemnity Notice”) with reasonable promptness to the Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party’s rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within 30 days following the Indemnifying Party’s receipt of the Indemnity Notice, the Damages arising from the claim specified in such Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under Section 11.02 and the Indemnifying Party shall pay the amount of such Damages to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect the such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within 30 days, such dispute shall be judicially adjudicated in accordance with Section 13.05 and Section 13.06.
(f) Each Indemnified Party must mitigate in accordance with Applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the views Indemnifying Party has paid the Indemnified Party under any indemnification provision of Parent this Agreement in respect of that loss, the MSA Matter. Neither Spinco nor any Spinco Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(g) Each Indemnified Party shall consent use its reasonable efforts to collect any amounts available under insurance coverage, or agree to from any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not other Person alleged to be unreasonably withheldresponsible, conditioned or delayedfor any Damages payable under Section 11.02.
Appears in 1 contract
Procedures. (a) If any Parent Indemnified Party shall seek Promptly after a Person entitled to indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification hereunder (the “Indemnified PersonParty”) shall has received notice or has knowledge of any claim or the commencement of any Action for which such party may be entitled to indemnification under this ARTICLE 10, the Indemnified Party shall, if it wishes to seek indemnification for such claim or Action, give written notice the party required to the Party from whom such provide indemnification is sought hereunder (the “Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (or), if the Indemnified Person is a corporation, any officer or director written notice of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person such Action and provide the Indemnifying Party with the facts within the Indemnified Party’s knowledge respecting such claim or Action that is not a Parent Company in the possession of the Indemnified Party. To extent reasonably determinable by the Indemnified Party, such notice shall state the nature and basis of such claim or a Spinco Company (a “Third Action and the amount in dispute under such claim or Action. In each such case, the Indemnified Party Claim”), any agrees to give such notice to the Indemnifying Party shall be accompanied by a copy promptly following its knowledge of any papers theretofore served on such claim or delivered Action; provided that the delay or failure of the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify except to the Indemnified Person in connection with such Third Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), extent the Indemnifying Party will be entitled to assume is actually prejudiced by reason of the Indemnified Party’s delay or failure in its defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b)claim. After written If such notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of concerns a Third Party ClaimPerson Claim and such Third Person Claim does not allege violations of criminal law, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend elect, at the Indemnifying Party’s sole expense, to assume the defense of such Third Party Person Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether ; provided that the Indemnifying Party or shall obtain the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express prior written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party (which consent shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed) before entering into any settlement, adjustment or compromise of any such Third Person Claim. The Indemnified Party shall have the right to elect, at such party’s sole expense, to participate in (but not control) the defense of a Third Person Claim, the defense of which is validly assumed by the Indemnifying Party, and to employ, at its own expense, counsel in connection with its participation therein; provided, however, that if there exists a material conflict of interest between the Indemnifying Party, on the one hand, and the Indemnified Party, on the other hand, or if the Indemnified Party has been advised by counsel that there may be one or more legal or equitable defenses available to it that are different from or additional to those available to the Indemnifying Party that, in either case, would make it inappropriate for the same counsel to represent both the Indemnifying Party and the Indemnified Party, then the Indemnified Party shall be entitled to retain its own counsel at the cost and expense of the Indemnifying Party (except that the Indemnifying Party shall not be obligated to pay the fees and expenses of more than one separate counsel for all Indemnified Parties, taken together). If the Indemnifying Party has elected not to assume the control of the defense of such Third Person Claim, or if the Indemnifying Party shall have failed after the lapse of a reasonable period of time, which shall in no event be less than 10 calendar days after receipt by the Indemnifying Party of written notice of such Third Person Claim, to assume the control of the defense of such Third Person Claim, the Indemnified Party shall be entitled to defend against the same and to employ counsel reasonably satisfactory to the Indemnifying Party, at the expense of the Indemnifying Party; provided, in such event, the Indemnified Party shall obtain the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld) before entering into any settlement, adjustment or compromise of any such Third Person Claim. In connection with any Third Person Claim, the Indemnified Party, or the Indemnifying Party, if it has assumed the defense of such Third Person Claim pursuant to this Section 10.4(a), shall diligently defend such Third Person Claim and the parties shall reasonably cooperate with one another in connection with the handling of such Third Person Claim shall make available personnel, witnesses, books, and records relevant to such Third Person Claim and grant such authorizations as are necessary and reasonable to their respective agents, Representatives, and counsel upon reasonable request and keep each other reasonably informed of the status thereof.
(b) If the Indemnified Party shall have any claim against the Indemnifying Party pursuant to this Section 10.4, the Indemnified Party shall deliver to the Indemnifying Party a written notice explaining the nature and a reasonable estimate of the amount of such claim promptly after the Indemnified Party shall know of such claim.
Appears in 1 contract
Procedures. (a) If any Parent Indemnified Party shall seek indemnification Each of Buyer pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification Sections 13.2 and Seller pursuant to Section 7.02(b), the Person seeking indemnification Sections 13.3 (the “"Indemnified Person”Party") shall agrees to give written prompt notice to the other Party from whom such indemnification is sought (the “"Indemnifying Party”") promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceedingsuit, brought by a Person action or proceeding in respect of which indemnity may be sought under this Agreement, including the amount and other details of such claim; provided, however, that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy failure of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the Indemnifying Party will be entitled to assume the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, so notify the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as relieve the Indemnifying Party assumes of its indemnification obligations hereunder, except to the defense extent that the Indemnifying Party shall have been prejudiced by such lack of timely and control of a Third adequate notice. The Indemnifying Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right right, at its election, to defend take over the defense or settlement of such Third Party Claim, subject claim at its own expense by giving prompt notice to that effect to the limitations set forth in this Section 7.03, in such manner as it may deem appropriateIndemnified Party. Without regard to whether If the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting have so assumed the defense thereof shall at all times act as if all Damages relating to of any claim, the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claimssuch claim, and without the Indemnified Person shall prior written consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No ; provided, however, that a condition to any such settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits a complete release of the Indemnified Person with respect to such claim. The Indemnified Party shall at all times have the right, at its option and expense, to participate fully in, but not to control, any such defense. If the Indemnifying Party does not, within thirty days after receipt of the Indemnified Party's notice of claim, (x) give such notice to take over the defense of such claim and proceed diligently to defend the claim or (y) object to such claim in writing to the Indemnified Party, then the Indemnified Party shall have the right, but not the obligation, to undertake the defense of such claim for the account of and at the risk of the Indemnifying Party. The parties shall cooperate in defending any third party claim, and the defending party shall have reasonable access to the books, records and personnel which are pertinent to the defense and which are in the possession or control of the other party. The parties agree that any Indemnified Party may, at its own expense, join an Indemnifying Party in any action, claim or proceeding brought by a third party, as to which any right of indemnity created by this Agreement would or might apply, for the purpose of enforcing any right of indemnity granted to such Indemnified Party Pursuant to this Agreement.
(eb) Without limiting the provisions of this Section 7.03, it is acknowledged Any claim for indemnification made directly by a party and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLCwhich does not result from a third party claim or action, shall consult with Parent regarding any material developments and decisions in be asserted by written notice. The other party shall have a period of sixty days within which to respond thereto. If the defense of the MSA Matter other party does not respond within such sixty day period, such party shall be deemed to have accepted responsibility to make payment and shall consider in good faith have no further right to contest the views validity of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayedclaim.
Appears in 1 contract
Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), Any Purchaser Indemnitee or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person Seller Indemnitee seeking indemnification under Section 8.1 (the “"Indemnified Person”Party") shall give written prompt notice (the "Notice of Claim") to the Party from party against whom such indemnification indemnity is sought (the “"Indemnifying Party”") promptly of (and in i) the assertion of any event within 10 days) after claim by the Indemnified Party or (ii) the assertion of any claim, action, suit, proceeding or investigation by any Person (oralleging facts that, if proven true, would constitute grounds for indemnification by the Indemnified Person is Party (a corporation"Third-Party Claim"); provided however, any officer or director that no delay on the part of the Indemnified Person) becomes aware Party in notifying the Indemnifying Party shall relieve the Indemnifying Party of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (any liability or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02obligation hereunder, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have has been or otherwise results prejudiced thereby. The Indemnifying Party may, and, at the request of the Indemnified Party, shall, participate in prejudice to and control the defense of any Third-Party Claim at its own expense. If the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration assumes control of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claim.
(b) In the event of receipt of notice defense of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the Indemnifying Party will be entitled to assume the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Third-Party Claim, (1) the Indemnifying Party shall not be liable to such Indemnified Person under Section 8.1 for any legal fees settlement effected by the Indemnified Party with respect to any Third-Party Claim without its consent, which shall not be unreasonably withheld or expenses subsequently incurred delayed and (2) the Indemnifying Party shall not consent to the entry of any judgment or enter into any settlement with respect to the Third-Party Claim unless (A) such settlement includes an unconditional release by such all parties to the reasonable satisfaction of the Indemnified Person in connection therewithParty 33NEXT PAGE and (B) the judgment or settlement does not impose any restrictions on the activities of, or require any payments from, any Purchaser Indemnitee. Notwithstanding anything in this Section 7.03 to the contraryforegoing, until such time as whether or not the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Third-Party Claim, subject if (i) the Indemnified Party determines in good faith that a Third-Party Claim is likely to have a material adverse effect on Purchaser in a manner that may not be adequately compensated by money damages or (ii) any Third-Party Claim relating to taxes that is not likely to be adequately addressed by money damages as determined by the Indemnified Party in good faith, then the Indemnified Party may, by written notice to the limitations set forth Indemnifying Party, assume the exclusive right to defend, compromise, or settle such Third-Party Claim. The party controlling the defense of any third party suit, action or proceeding shall keep the other party advised of the status of such action, suit or proceeding and the defense thereof and shall consider in this Section 7.03, in such manner as it may deem appropriate. Without regard good faith recommendations made by the other party with respect thereto.
(b) If the Notice of Claim relates to whether the Indemnifying a direct claim for Damages by an Indemnified Party or the Indemnified Person is defending and controlling any such Third not a Third-Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.then:
(ci) The Indemnifying Party shall be authorized to consent to Within 30 days after delivery of a settlement of, or the entry Notice of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, provide to the extent Indemnified Party a written response (the "Response Notice"), in which the Indemnifying Party must either: (x) agree that some or all of the Damages claimed should be indemnified and, in the case of any Damages claimed and not so agreed to, contest such claimed amount, or (y) contest all of the Damages claimed. The Indemnifying Party may contest such claimed amount of Damages only based upon a good faith belief that all or such portion of such paymentclaimed amount does not constitute Damages for which the Indemnified Party is entitled to indemnification hereunder. If the Indemnifying Party does not deliver on a timely basis a Response Notice, the Indemnifying Party shall be deemed to have agreed that all rights and remedies of the Indemnified Person claimed amount should be indemnified. Any such amount agreed to, or so deemed to any insurance benefits be agreed to, by the Indemnifying Party pursuant to clause (x) or other claims (y) of this subsection (b)(i) or benefits otherwise pursuant to this Agreement is referred to herein as an "Agreed Amount."
(ii) If the Indemnifying Party in the Response Notice contests all or part of the Indemnified Person with respect to such claim.
claimed amount (e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoingthereupon, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”"Contested Amount"), the Parties acknowledge Indemnifying Party and agree that the Spinco Indemnified Parties Party shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim attempt promptly and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith to agree upon the views of Parent in respect rights of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment parties with respect to the MSA Matter (including through any approval of Contested Amount. If the Indemnifying Party and the Indemnified Party should so agree, a memorandum setting forth such agreement shall be prepared and signed by such parties and, if such agreement provides that all or consent to any action a portion of the MSA joint venture) without the express written consent of Parent, such consent not Contested Amount is to be unreasonably withheldpaid to the Indemnified Party (all or such portion of such Contested Amount to be so paid to the Indemnified Party being also referred to herein as an "Agreed Amount"), conditioned or delayedthe Indemnifying Party shall make such payments in accordance with the terms of this Agreement.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Mutualfirst Financial Inc)
Procedures. (a) If any Parent Indemnified Party The procedure for indemnification shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking be as follows:
9.5.1 The party claiming indemnification (the “Indemnified PersonClaimant”) shall promptly give written notice to the Party party from whom such indemnification is sought claimed (the “Indemnifying Party”) promptly of any claim, whether between the Parties (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Direct Claim”)) or brought by a third party, which notice shall specify in reasonable detail specifying (i) to the Claimant’s knowledge, the factual basis of the Indemnified Claim, state the amount of Damages for such claim; and (or if not known, ii) a good faith estimate of the amount of Damages) and the method claim, if such amount is capable of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01estimation. If the Indemnified Claim arises from the assertion of any claimclaim relates to an action, suit or the commencement of any Proceeding, brought proceeding filed by a Person that is not a Parent Company or a Spinco Company third party against Claimant (a “Third Party Claim”), any such notice shall be given reasonably promptly by Claimant to the Indemnifying Party after written notice of such Third Party Claim is received by Claimant; provided, however, that the failure of the Claimant to give timely notice hereunder shall not relieve the Indemnifying Party of its obligations under this Article 9 unless, and only to the extent that, the Indemnifying Party has been prejudiced thereby.
9.5.2 Following receipt of notice from the Claimant of a Direct Claim, the Indemnifying Party shall have thirty (30) days to make such investigation of the claim as the Indemnifying Party deems necessary or desirable. For the purposes of such investigation, the Claimant agrees to make available to the Indemnifying Party and its authorized representative(s) the information relied upon by the Claimant to substantiate the claim. If the Claimant and the Indemnifying Party agree at or prior to the expiration of such 30-day period (or any mutually agreed upon extension thereof) to the validity and amount of such claim, the Indemnifying Party shall immediately pay to the Claimant the full amount of the claim, subject to the terms and in accordance with the procedures set forth herein, including Section 9.4 and Section 9.6. If the Claimant and the Indemnifying Party do not agree within such period (or any mutually agreed upon extension thereof), the Claimant may seek appropriate legal remedies.
9.5.3 With respect to any Third Party Claim as to which the Claimant is entitled to indemnification hereunder, the Indemnifying Party shall have the right to undertake the defense of, or opposition to, such Third Party Claim with counsel selected by such Indemnifying Party, subject to the Indemnifying Party’s notifying the Claimant, in writing promptly after receipt of the Claimant’s notice of Claim, of its intention to assume such defense or opposition. The Claimant shall cooperate fully with the Indemnifying Party. If the Indemnifying Party elects to assume control of the defense of, or opposition to, any Third Party Claim, the Claimant shall have the right to participate in the defense of, or opposition to, such claim at its own expense; provided, however, if, in the reasonable opinion of counsel for the Claimant, there would be a conflict of interest if the Indemnifying Party’s counsel represented both the Indemnifying Party and the Claimant, the Indemnifying Party shall be accompanied responsible for the reasonable fees and expenses of one counsel selected by a copy of any papers theretofore served on the Claimant to participate in such defense or delivered to the Indemnified Person in connection with such Third Party Claimopposition.
(b) 9.5.4 In the event of receipt of notice of a the Indemnifying Party (i) does not elect to assume control or otherwise participate in the defense of, or opposition to, any Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the Indemnifying Party will be or (ii) is not entitled to assume control of the defense and control of of, or opposition to, any such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable bound by the results obtained by the Claimant with respect to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contraryclaim; provided, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03however, the Indemnified Person Claimant shall not have the right to defend such Third Party Claim, subject consent or otherwise agree to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party any monetary or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such non-monetary settlement or entry of judgment does not contain relief, including injunctive relief or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliatesother equitable remedies, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express prior written consent of the Indemnifying Party.
(d) If an , which consent will not be unreasonably withheld, delayed or conditioned. In the event that the Indemnifying Party makes assumes control of the defense of, or opposition to, any payment on an Indemnified Third Party Claim, the Claimant shall be bound by the results obtained by the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree ; provided that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Indemnifying Party shall not have the right to consent or otherwise agree to any non-monetary settlement or entry of judgment with respect to the MSA Matter (relief, including through any approval of injunctive relief or consent to any action of the MSA joint venture) other equitable remedies, without the express prior written consent of Parentthe Claimant, such which consent will not to be unreasonably withheld, conditioned delayed or delayedconditioned. Notwithstanding the foregoing, neither the Indemnifying Party nor the Claimant shall settle or compromise any such claim or demand unless the Claimant or the Indemnifying Party, respectively, is given a full and complete release of any and all Losses by all relevant parties relating thereto.
9.5.5 If a claim, whether a Direct Claim or a Third Party Claim, requires immediate action, the Parties will work in good faith to reach a decision with respect thereto as expeditiously as possible.
Appears in 1 contract
Samples: Asset Purchase Agreement (Shenandoah Telecommunications Co/Va/)
Procedures. (a) If any Parent Indemnified Party shall seek a party hereto seeks indemnification pursuant to under this Section 7.02(a)8.2, or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification such party (the “Indemnified PersonParty”) shall give written notice to the Party from whom such indemnification is sought other party (the “Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts and circumstances giving rise to such claim for indemnification (an “the claim. In that regard, if any suit, action, claim, liability or obligation is brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Claim”)Party to indemnity pursuant to this Section 8.2, which notice the Indemnified Party shall specify promptly notify the Indemnifying Party of the same in writing, specifying in reasonable detail the factual basis of such claim and the facts pertaining thereto and the Indemnifying Party, if it so elects (except that the Indemnifying Party may not so elect without the Indemnified Claim, state Party’s consent unless (i) the amount of Damages (or if not known, a good faith estimate of Indemnifying Party acknowledges in writing its obligation to indemnify the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except Party to the extent required under this ARTICLE VIII, (ii) the Indemnifying Party provides reasonable evidence to the Indemnified Party of its financial ability to satisfy its indemnification obligations, (iii) the suit, action, claim, liability or obligation does not seek to impose any liability or obligation upon the Indemnified Party other than for money damages, (iv) such suit, claim or action involves aggregate Losses that (i) any such failure or delay in giving notice causes the amounts paid or are reasonably expected to be paid less than the maximum amount for which such Indemnifying Party could be liable under this ARTICLE VIII and (v) such suit, action, claim, liability or obligation does not relate to the Indemnified Party’s relationship with its customers, suppliers or employees) shall assume and control the defense thereof (and shall consult with the Indemnified Party with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of expenses. If the Indemnifying Party elects to assume and control the defense, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be greater than they otherwise would have at the expense of the Indemnified Party unless (y) the employment thereof has been or otherwise results in prejudice to specifically authorized by the Indemnifying Party in writing or (iiz) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the Indemnifying Party will be entitled has failed to assume the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b)employ counsel. After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the The Indemnifying Party shall not be liable to such Indemnified Person for any legal fees settlement of any action or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contraryproceeding, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03which it has elected to assume, the Indemnified Person shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person which settlement is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person effected without the express written consent of the Indemnifying Party.
(d) . If an there shall be a settlement to which the Indemnifying Party makes consents or a final judgment for the plaintiff in any payment on an Indemnified Claimaction or proceeding, the Indemnifying Party shall be subrogated, to indemnify and hold harmless the extent Indemnified Party from and against any Loss by reason of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits settlement or other claims or benefits of the Indemnified Person judgment in accordance with respect to such claim.
this ARTICLE VIII. (e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Samples: Stock Purchase Agreement
Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person Any party seeking indemnification under Section 12.02 (the “Indemnified PersonParty”) shall give prompt written notice to the Party from party against whom such indemnification indemnity is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (assertion or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion commencement of any claim, action, suit or proceeding by any third party alleging facts that if proven true would constitute a misrepresentation or breach of warranty by the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco with respect to any Ancillary Agreement, the Company (a “Third Party Claim”), any such notice to ; provided that no delay on the part of the Indemnified Party in notifying the Indemnifying Party shall be accompanied by a copy relieve the Indemnifying Party of any papers theretofore served on liability or delivered obligation hereunder except to the extent that the Indemnifying Party has been prejudiced thereby. The Indemnifying Party may, and at the request of the Indemnified Person Party shall, participate in connection with such Third Party Claim.
(b) In and control the event defense of receipt of notice of a any Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), at its own expense. If the Indemnifying Party will be entitled to assume assumes control of the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person under Section 12.03 for any legal fees or expenses subsequently incurred settlement effected by such the Indemnified Person in connection therewithParty without its consent of any Third Party Claim. Notwithstanding anything in this Section 7.03 to the contraryforegoing, until such time as if the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, and if the Indemnified Person shall have the right to defend such Third Party Claim, subject to the limitations set forth later determines in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the good faith that a Third Party Claim were for is likely to materially adversely affect it or its own account and shall act business in good faith and with reasonable prudence a manner that may not be adequately compensated by money damages, then the Indemnified Party may, by written notice to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party, assume the exclusive right to defend, compromise, or settle such claim. If the Indemnified Party shall so assume the exclusive right to defend, compromise, or settle such claim, all attorneys’ fees and other expenses incurred by the Indemnified Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a the defense, compromise or settlement of, or of such claim and for the entry full amount of any judgment arising from, any Third Party Claims, and other Damages suffered by the Indemnified Person shall consent to Party as a settlement of, result of or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any out of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of at the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”)’s expense. In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including The party controlling the defense of claims in respect thereof by Mission Support Allianceany third party suit, LLCaction or proceeding shall keep the other party advised of the status of such action, shall consult with Parent regarding any material developments suit or proceeding and decisions in the defense of the MSA Matter thereof and shall consider in good faith recommendations made by the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment other party with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayedthereto.
Appears in 1 contract
Samples: Merger Agreement (Optium Corp)
Procedures. Except with respect to Tax Claims, which are addressed in Article VI, claims for indemnification under this Agreement will be asserted and resolved as follows:
(a) If Any Buyer Indemnitee or Seller Indemnitee seeking indemnification under this Agreement (an “Indemnified Party”) with respect to any Parent claim asserted against the Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified by a third party (“Third Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification (the “Indemnified PersonClaim”) shall give written notice in respect of any matter that is subject to indemnification under Section 9.02 will promptly notify in writing (a “Claim Notice”) the other Party from whom such indemnification is sought (the “Indemnifying Party”) promptly of the Third Party Claim (and in any event within 10 days) 20 Business Days after the receipt by such Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director Party of written notice of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Third Party Claim”), which notice shall specify Claim Notice will describe in reasonable detail the factual nature of the Third Party Claim, including the basis of the Indemnified Claim, state the amount of Damages (or if not known, Party’s request for indemnification under this Agreement and a good faith reasonable estimate of any Damages suffered or expected to be suffered with respect thereto; provided, that, failure to promptly provide such Claim Notice will not relieve the amount Indemnifying Party of Damages) and the method of computation thereof, contain a reference to the provision of its indemnification obligations provided under this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any the Indemnifying Party will have been prejudiced as a result of such failure or delay in giving notice causes the amounts paid or to be paid by delay. The Indemnified Party will promptly provide the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by with a copy of any all papers theretofore served on or delivered with respect to such claim (if any) promptly upon receipt thereof by the Indemnified Person in connection with such Third Party ClaimParty.
(b) In The Indemnifying Party will have the event right to participate in the defense of receipt of notice of a any Third Party Claim from an Indemnified Person pursuant at any time and, subject to the limitations contained in this Section 7.03(a9.03(b), assume and control the defense thereof. The Indemnifying Party will promptly notify the Indemnified Party (and in any event within 60 Business Days after having received any Claim Notice) with respect to whether or not it is exercising its right to assume and control the defense of any such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party that the Indemnifying Party elects to assume and control the defense of the Third Party Claim (such election to be without prejudice to the right of the Indemnifying Party to dispute whether such claim is an indemnifiable Damage under this Article IX, then the Indemnifying Party will be entitled to assume the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether Claim with counsel selected by the Indemnifying Party or and not reasonably objected to by the Indemnified Person is defending and controlling any such Third Party ClaimParty, it shall select counselin all appropriate proceedings, contractors, experts and consultants to a final conclusion or Settlement at the discretion of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection accordance with any Third Party Claim.
(c) The this Section 9.03(b); provided, that, an Indemnifying Party shall will not be authorized entitled to consent to a settlement of, or assume the entry defense of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, Claim if (A) such settlement shall not encumber any of Third Party Claim could result in criminal liability of, or equitable remedies against, the assets of any Indemnified Person Party or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented does not solely seek and continue to by solely seek monetary damages. The Indemnifying Party will have full control of such defense and proceedings, including any Indemnified Person Settlement thereof; provided, that, the Indemnifying Party will not enter into any Settlement without the express prior written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall (which consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent will not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, such consent will not be required if (i) the Settlement (x) for any civil litigation contains a complete and unconditional general release by the third party asserting the Third Party Claim to all Indemnified Parties affected by the Third Party Claim and (y) for any Action by a Governmental Authority or Educational Agency provides a full resolution of the matters investigated based on the facts known at the time, (ii) the Settlement does not contain any sanction or material restriction upon the conduct or operation of any business conducted by the Indemnified Party or its Affiliates, (iii) the Settlement involves only monetary payments and, subject to the Cap and the other terms and conditions of this Article IX, the Indemnifying Party pays, or agrees to pay or cause to be paid, all such monetary payments arising out of such Settlement promptly following the effectiveness of such Settlement and (iv) exclusively with respect to any of the matters for which Seller has agreed to provide indemnification pursuant to Section 9.02(a)(iii), the Settlement would not reasonably be expected to have a materially negative effect on any pending litigation involving the same or similar facts or allegations for which the Indemnified Party may have a Liability or result in the imposition of restrictions upon the conduct or operation of any business conducted by the Indemnified Party. The Indemnified Party may participate in, but not control, any defense or resolution of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 9.03(b), and the Indemnified Party will bear its own costs and expenses with respect to such participation unless the employment of separate legal counsel has been specifically authorized in writing by the Indemnifying Party.
(c) If the Indemnifying Party does not notify the Indemnified Party that the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 9.03(b) within 20 Business Days after receipt of any Claim Notice, then the Indemnified Party will defend itself against the applicable Third Party Claim, and be reimbursed for its reasonable cost and expense (but only if the Indemnified Party is actually entitled to indemnification hereunder) in regard to the Third Party Claim with counsel selected by the Indemnified Party, in all appropriate proceedings and in good faith, which proceedings will be prosecuted diligently by the Indemnified Party. In such circumstances, the Indemnified Party will defend any such Third Party Claim in good faith and have full control of such defense and proceedings; provided, that, the Indemnified Party may not enter into any Settlement of such Third Party Claim if indemnification is to be sought hereunder, without the Indemnifying Party’s consent (which consent will not be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, the Indemnified Party will not have the authority to make any admission of fact or liability as part of a Settlement that would reasonably be excepted to have a materially negative effect on any Liability for which Seller has agreed to provide indemnification pursuant to Section 9.02(a)(iii) or any pending litigation involving the same or similar facts or allegations for which the Indemnifying Party may have any Liability, without the prior written consent of Indemnifying Party. The Indemnifying Party may participate in, but not control, any defense or Settlement controlled by the Indemnified Party pursuant to this Section 9.03(c), and the Indemnifying Party will bear its own costs and expenses with respect to such participation; provided, that, if at any time the Indemnifying Party acknowledges in writing that such Third Party Claim is an indemnifiable Damage under this Article IX, the Indemnifying Party will be entitled (to the extent permitted under Section 9.03(b) to assume the defense of such Third Party Claim in accordance with Section 9.03(b). For the avoidance of doubt, if the Indemnifying Party does notify the Indemnified Party that the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 9.03(b) and this Section 9.03(c), the Indemnifying Party will be liable for the reasonable fees and expenses of counsel employed by the Indemnified Party for any period during from and after such 20 Business Day period which the Indemnifying Party has not assumed the defense thereof (but only if the Indemnified Party is actually entitled to indemnification hereunder).
(d) If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is actually entitled to indemnification hereunder), to reasonably cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, including providing reasonable access to documents, records and information. In addition, the Indemnified Party will make its personnel reasonably available at no cost to the Indemnifying Party for conferences, discovery, proceedings, hearings, trials or appeals as may be reasonably requested by the Indemnifying Party. The Indemnified Party also agrees to reasonably cooperate with the Indemnifying Party and its counsel, in the making of any related counterclaim against the Person asserting the Third Party Claim or any cross complaint against any Person and executing powers of attorney to the extent necessary.
(e) A claim for indemnification for any matter not involving a Third Party Claim will be asserted by notice to the Indemnifying Party as promptly as practicable (the failure to give prompt notice will not, however, relieve the Indemnifying Party of its indemnification obligations unless the Indemnifying Party is prejudiced by such delay), which notice will describe in reasonable detail the nature of the claim and the basis of the Indemnified Party’s request for indemnification under this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Adtalem Global Education Inc.)
Procedures. (a) If A claim for indemnification for any Parent Indemnified matter not involving a Third-Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification (the “Indemnified Person”) shall give Claim may be asserted by written notice to the Party from whom such indemnification is sought under this ARTICLE 12 (the “Indemnifying Party”) promptly (and in any event within 10 days) after ). If the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise Indemnifying Party does not object to such claim for within 30 days, it shall be deemed to have agreed to the claim.
(b) Promptly after a Person entitled to indemnification hereunder (an the “Indemnified Party”) has received notice or has knowledge of any Third-Party claim or proceeding, or threatened claim or proceeding (a “Third-Party Claim”) which could result in a Loss for which such Party may be entitled to indemnification under this ARTICLE 12, the Indemnified Party shall promptly deliver to the Indemnifying Party written notice of such Third- Party Claim (the “Claim Notice”), which notice Claim Notice shall specify include, to the extent known, the nature and basis of such Third-Party Claim, the basis for indemnification hereunder, and the amount in reasonable detail dispute under such action, claim, or proceeding; provided, however, that the factual basis failure of the Indemnified Claim, state Party to provide the amount of Damages (Claim Notice shall not release or if not known, a good faith estimate of waive the amount of Damages) and the method of computation thereof, contain a reference Indemnifying Party from its obligations to the provision of Indemnified Party under this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, ARTICLE 12 except to the extent that the Indemnifying Party is actually prejudiced as a result of such failure.
(ic) Following receipt of the Claim Notice, the Indemnifying Party may elect at any time to assume and thereafter conduct the defense and settlement, of any Third-Party Claim subject to any such failure indemnification claim with counsel of the Indemnifying Party’s choice and to settle or delay compromise any such Third-Party Claim, and the Indemnified Party shall cooperate in giving notice causes all respects with the amounts paid or to be paid conduct of such defense by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to and/or the settlement of such Third-Party Claim by the Indemnifying Party; provided, however, that the Indemnifying Party will not approve of the entry of any judgment or (ii) such notice is not delivered enter into any settlement or compromise with respect to the Indemnifying Third-Party Claim without the Indemnified Party’s prior to written approval (which shall not be unreasonably withheld, conditioned, or delayed), unless the expiration terms of such settlement provide for a complete and unconditional release of the applicable survival period set forth in Section 7.01. If claims that are the Indemnified Claim arises from the assertion subject of any such action, claim, or proceeding in favor of the commencement of any ProceedingIndemnified Party. Notwithstanding the foregoing, brought by a Person that is not a Parent Company or a Spinco Company (a “Third the Indemnified Party Claim”)shall have the right to control the defense of, any such notice to and the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the Indemnifying Party will not be entitled to assume the defense of, any Third-Party Claim that seeks relief other than monetary damages against the Indemnified Party and control that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages.
(d) The Parties agree to cooperate fully in connection with the defense, negotiation, or settlement of any claim for indemnification arising from a Third-Party Claim. Such cooperation will include the retention and, upon the request of the party defending, negotiating, or settling the claim, the provision to such party of records and information which are reasonably relevant to such Third-Party Claim, and making employees and other Representatives reasonably available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder.
(e) If the Indemnifying Party fails or refuses to undertake the defense of such Third Third-Party Claim subject within sixty (60) calendar days after the claim for indemnification has been tendered to the provisions Indemnifying Party by the Indemnified Party, pursuant to and in accordance with Section 12.5(c), or if the Indemnifying Party later fails to conduct in good faith the defense or withdraws from such defense, the Indemnified Party shall have the right to (i) undertake the defense of such claim with counsel of its own choosing, with the Indemnifying Party being responsible for the reasonable costs and expenses of such defense as Losses hereunder if and to the extent that such claim is determined to be a claim for which such Indemnified Person is entitled to be defended, indemnified, held harmless, or reimbursed under this Section 7.03(bARTICLE 12, and (ii) settle or compromise, or attempt to settle or compromise, the Third-Party Claim; provided, however, that the Indemnified Party shall not settle or compromise such Third-Party Claim without the Indemnifying Party’s prior written consent (which shall not be unreasonably withheld, conditioned, or delayed). After written notice .
(f) Once a Loss is agreed (or deemed to agreed) to by the Indemnifying Party or finally adjudicated to the Indemnified Person of its election be payable pursuant to assume the defense and control of a Third Party Claimthis Section 12.5 or otherwise judicially determined in accordance with Section 13.10, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for satisfy its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
obligations within fifteen (c15) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent Business Days of such paymentfinal, to all rights and remedies non-appealable adjudication by wire transfer of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claimimmediately available funds.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Each Person seeking indemnification under this Article 11 (the “Indemnified PersonParty”) shall give written prompt notice to the Party Person from whom such indemnification is sought (the “Indemnifying Party”) promptly of the assertion of any claim or the commencement of any Action by any third party (and in any event within 10 days) after “Third Party Claim”); provided that the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director failure of the Indemnified Person) becomes aware of the facts giving rise Party to such claim for indemnification (an “Indemnified Claim”), which give notice shall specify as provided in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, 11.03(a) shall not constitute a waiver relieve any Indemnifying Party of that Person’s claims to indemnification pursuant to its obligations under Section 7.0211.02, except to the extent that (i) such failure adversely prejudices the rights of any such failure or delay Indemnifying Party. Such notice shall set forth in giving notice causes reasonable detail such claim and the amounts paid or basis for indemnification (taking into account the information then available to be paid the Indemnified Party). Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, as promptly as reasonably practicable following the Indemnified Party’s receipt thereof, copies of all written notices and documents (including any court papers) received by the Indemnified Party relating to the Third Party Claim and the Indemnified Party shall provide the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant other information with respect to Section 7.03(a), the Indemnifying Party will be entitled to assume the defense and control of any such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice reasonably requested by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the Party. The Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right right, at its sole option and expense, to defend such Third Party Claimbe represented by counsel of its choice and, subject to the limitations set forth in this Section 7.0311.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party assume control of, and defend against, negotiate, settle (subject to clause (b)) or the Indemnified Person is defending and controlling any otherwise deal with such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary but the Indemnified Party may nonetheless participate in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the of such Third Party Claim were for with its own account counsel and shall act in good faith and with reasonable prudence to minimize Damages therefromat its own expense. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with If the Indemnifying Party elects not to defend against, negotiate, settle or otherwise deal with any Third Party Claim or resolve any Environmental Matter pursuant to this Article 11, then the Indemnified Party may defend against, negotiate, settle (subject to clause (b)) or otherwise deal with such Third Party Claim or Environmental Matter at the Indemnifying Party’s expense. If the Indemnifying Party shall, assume the defense of any Third Party Claim or the resolution of any Environmental Matter pursuant to this Article 11, then the Indemnified Party may participate, at his or its own expense, in the defense of such Third Party Claim or Environmental Matter, as applicable; provided that such Indemnified Party shall be entitled to participate in any such defense with separate counsel at the expense of the Indemnifying Party if (i) requested by the Indemnifying Party to participate or (ii) in the reasonable opinion of counsel to the Indemnifying Party, a material conflict exists between the Indemnified Party and the Indemnifying Party that would make such separate representation advisable; provided, further that the Indemnifying Party shall not be required to pay for more than one such counsel (in addition to local counsel) for all Indemnified Parties in connection with any Third Party ClaimClaim or Environmental Matter.
(cb) The Notwithstanding anything in this Section 11.03 to the contrary, neither the Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and nor the Indemnified Person shall Party shall, without the written consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person other party, settle or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of compromise any Third Party Claim shall be consented or permit a default or consent to by entry of any Indemnified Person without judgment. Notwithstanding the express written foregoing, consent of the Indemnified Party shall not be required for any such settlement if (i) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party.
, (dii) such settlement does not permit any order, injunction or other equitable relief to be entered, directly or indirectly, against the Indemnified Party and (iii) such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Third Party Claim and does not include any statement as to or any admission of fault, culpability or failure to act by or on behalf of any Indemnified Person. If an the Indemnifying Party makes any payment on an Indemnified Claimany Third Party Claim or in respect of any Environmental Matter, then the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person Party to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim or Environmental Matter, as applicable.
(c) After any decision, judgment or award shall have been rendered by a Governmental Authority of competent jurisdiction, or a settlement shall have been consummated (in accordance with this Article 11), or the Indemnified Party and all Proceedings relating theretothe Indemnifying Party shall have arrived at a mutually binding agreement with respect to a Third Party Claim hereunder, including the defense Indemnified Party shall forward to the Indemnifying Party notice of claims in any sums due and owing by the Indemnifying Party pursuant to this Agreement with respect thereof by Mission Support Allianceto such matter.
(d) Each party shall cooperate, LLCand cause their respective Affiliates to cooperate, shall consult with Parent regarding any material developments and decisions in the defense or prosecution of the MSA Matter any Third Party Claim and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent furnish or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not cause to be unreasonably withheldfurnished such records, conditioned information and testimony, and attend such conferences, discovery proceedings, hearings, trials or delayedappeals, as may be reasonably requested in connection therewith.
(e) Notwithstanding the foregoing, this Section 11.03 or the following Section 11.04 shall not apply to indemnification for a Tax Claim. The procedures for such indemnification shall be governed by Section 8.09.
Appears in 1 contract
Samples: Asset and Stock Purchase Agreement (Regal Beloit Corp)
Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person The party seeking indemnification under Section 11.02 (the “"Indemnified Person”Party") shall agrees to give written prompt notice to the Party from party against whom such indemnification indemnity is sought (the “"Indemnifying Party”") promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceedingsuit, brought by a Person action or proceeding ("Claim") in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto that is not a Parent Company or a Spinco Company (a “Third the Indemnifying Party Claim”), any such notice may reasonably request. The failure to so notify the Indemnifying Party shall be accompanied by a copy not relieve the Indemnifying Party of any papers theretofore served on or delivered its obligations hereunder, except to the Indemnified Person in connection with extent such Third Party Claimfailure shall have materially prejudiced the Indemnifying Party.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the The Indemnifying Party will shall be entitled to assume participate in the defense and control of such Third Party any Claim subject to the provisions of this Section 7.03(b). After written notice asserted by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a any third party ("Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim") and, subject to the limitations set forth in this Section 7.03Section, shall be entitled to control and appoint lead counsel for such defense, in such manner as it may deem appropriate. Without regard to whether each case at its expense.
(c) If the Indemnifying Party or shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 11.03, (i) the Indemnifying Party shall obtain the prior written consent of the Indemnified Person is defending and controlling Party (which shall not be unreasonably withheld) before entering into any settlement of such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in if the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and does not release the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, from all liabilities and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and all Proceedings relating thereto, including (ii) the defense of claims in respect thereof by Mission Support Alliance, LLC, Indemnified Party shall consult with Parent regarding any material developments and decisions be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the MSA Matter Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall consider furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in good faith connection therewith.
(e) Each Indemnified Party shall mitigate in accordance with Applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the views Indemnifying Party has paid the Indemnified Party under any indemnification provision of Parent this Agreement in respect of that loss, the MSA Matter. Neither Spinco nor any Spinco Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit to the Indemnified Party of that mitigation (less the Indemnified Party's reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall consent use reasonable efforts to collect any amounts available under insurance coverage, or agree to from any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not other Person alleged to be unreasonably withheldresponsible, conditioned or delayedfor any Damages payable under Section 11.02.
Appears in 1 contract
Samples: Stock Purchase Agreement (Kendle International Inc)
Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person The party seeking indemnification under Section 11.02 (the “Indemnified Person”"INDEMNIFIED PARTY") shall agrees to give written prompt notice to the Party from party against whom such indemnification indemnity is sought (the “Indemnifying Party”"INDEMNIFYING PARTY") promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceedingsuit, brought by a Person action or proceeding ("CLAIM") in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto that is not a Parent Company or a Spinco Company (a “Third the Indemnifying Party Claim”), any such notice may reasonably request. The failure to so notify the Indemnifying Party shall be accompanied by a copy not relieve the Indemnifying Party of any papers theretofore served on or delivered its obligations hereunder, except to the Indemnified Person in connection with extent such Third Party Claimfailure shall have adversely affected the Indemnifying Party.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the The Indemnifying Party will shall be entitled to assume participate in the defense and control of such Third Party any Claim subject to the provisions of this Section 7.03(b). After written notice asserted by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claimthird party ("THIRD PARTY CLAIM") and, subject to the limitations set forth in this Section 7.03Section, shall be entitled to assume the control of and appoint lead counsel for such defense, in such manner as it may deem appropriate. Without regard to whether each case at its expense.
(c) If the Indemnifying Party or shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 11.03, (i) the Indemnifying Party shall obtain the prior written consent of the Indemnified Person is defending and controlling Party (which shall not be unreasonably withheld, delayed or conditioned) before entering into any settlement of such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in but only if the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and does not release the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, from all liabilities and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments obligations with respect to such Third Party Claim or if the settlement imposes injunctive or other equitable relief against the Indemnified Party, and all Proceedings relating thereto, including (ii) the defense of claims in respect thereof by Mission Support Alliance, LLC, Indemnified Party shall consult with Parent regarding any material developments and decisions be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA MatterIndemnified Party. Neither Spinco nor any Spinco Indemnified The Indemnifying Party shall consent or agree to any settlement or entry of judgment have no indemnification obligations with respect to any Third Party Claim that shall be settled by the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) Indemnified Party without the express prior written consent of Parentthe Indemnifying Party, such which consent shall not to be unreasonably withheld, conditioned delayed or delayedconditioned.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim 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 reasonably requested in connection therewith. The Indemnified Party shall keep the Indemnifying Party fully informed of the defense of any Third Party Claim conducted by such Indemnified Party.
(e) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 11.02.
Appears in 1 contract
Samples: Stock Purchase Agreement (Delta Air Lines Inc /De/)
Procedures. (a) If Parent or any Parent Indemnified Party of its Affiliates or any of their directors, officers, employees and agents, shall seek indemnification pursuant to Section 7.02(a10.02(a), or if Buyer or any Spinco Indemnified Party of its Affiliates or any of their directors, officers, employees and agents, shall seek indemnification pursuant to Section 7.02(b10.02(b), the Person seeking indemnification (the “"Indemnified Person”Party") shall give written notice to the Party party from whom such indemnification is sought (the “"Indemnifying Party”") promptly (and in any event within 10 30 days) after the Indemnified Person Party (or, if the Indemnified Person Party is a corporation, any officer or director employee of the Indemnified PersonParty) becomes aware of the facts giving rise to such claim for indemnification (an “"Indemnified Claim”), which notice shall specify ") specifying in reasonable detail the factual basis of the Indemnified Claim, state stating the amount of Damages (or the Damages, if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain containing a reference to the provision of this Agreement the Transaction Documents in respect of which such Indemnified Claim arises and demand demanding indemnification therefor. The failure of an Indemnified Person Party to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, 10.03 shall not constitute a waiver of that Person’s party's claims to indemnification pursuant to Section 7.0210.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claim.the
(bi) In the event of Upon receipt of notice of a Third Party Claim from an Indemnified Person Party pursuant to Section 7.03(a10.03(a), the Indemnifying Party will be entitled to assume the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b)10.03. After written notice by the Indemnifying Party to the Indemnified Person Party of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person Party for any legal fees or expenses subsequently incurred by such Indemnified Person Party in connection therewith. Notwithstanding anything in this Section 7.03 10.3 to the contrary, until such time as if the Indemnifying Party assumes the does not assume defense and control of a Third Party Claim as provided in this Section 7.0310.3, the Indemnified Person Party shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.0310.03, in such manner as it may deem appropriate. Without regard to whether Whether the Indemnifying Party or the Indemnified Person Party is defending and controlling any such Third Party Claim, it they shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable all steps necessary in the investigation, defense or settlement thereof, and shall at all times diligently and promptly pursue the resolution thereof. The Party party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person Party shall, and shall cause each of its Affiliates Affiliates, directors, officers, employees, and Representatives agents to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(cii) The Subject to the provisions of Section 10.03(b)(iii) and Section 10.03(b)(iv), the Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person Party shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims; provided, if that the Indemnifying Party shall (A1) pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness thereof; (2) shall not encumber any of the assets of any Indemnified Person Party or contain agree to any restriction or condition that would apply to such Indemnified Person Party or to the conduct of that Person’s party's business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, ; and (C3) such settlement contains shall obtain, as a condition theretoof any settlement or other resolution, a complete release of each Indemnified Party. Except to the Indemnified Person. No extent of the foregoing, no settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnifying Party or Indemnified Person Party without the express written consent of the other party.
(iii) Notwithstanding the provisions of Section 10.03(b)(i), Buyer shall manage all Remedial Actions conducted with respect to facilities which constitute Contributed Assets, provided that Parent and its Representatives shall have the right, consistent with Buyer's right to manage such Remedial Actions as aforesaid, to participate fully in all decisions regarding any Remedial Action, including reasonable access to sites where any Remedial Action is being conducted, reasonable access to all documents, correspondence, data, reports or information
(iv) In the case of the indemnification contemplated by Section 10.02(b)(iii), in the event that the Indemnifying Party desires to settle the matters referenced therein or consent to the entry of any judgment arising thereunder and the Indemnified Party does not wish to consent to such settlement or entry of judgment, the Indemnified Party shall have no obligation to consent to the settlement or entry of judgment provided that it agrees in writing to pay and be responsible for 100% of any Damages; provided that the Indemnified Party shall not be required to consent to any settlement or agree to be responsible for the payment of Damages thereafter incurred with respect to any matter the settlement or entry of judgment of which would require the consent of such Indemnified Party pursuant to Section 10.03(b)(ii). The obligation of an Indemnified Party that rejects any proposed settlement offer or entry of any such judgment to pay and be responsible for 100% of any Damages in accordance with this Section 10.03(b)(iv) shall be conditioned upon and subject to the payment by the Indemnifying Party, within five Business Days of the date such Indemnified Party provides the written agreement contemplated by the preceding sentence, of an amount, in immediately available funds, equal to the portion of the total settlement that would have been payable by the Indemnifying Party according to the percentage sharing arrangement contemplated by Section 10.04(b)(ii). Thereafter, the Indemnified Party shall be solely responsible for any Damages and for the defense of the matter that is the subject of the proposed settlement or entry of judgment. Notwithstanding the foregoing, an Indemnifying Party may, at its option and expense, participate in the defense of any Indemnified Claim.
(v) In furtherance of and not in limitation of the provisions of this Section 10.03, with respect to product liability matters and other matters contemplated by Exhibit E, Parent and Buyer covenant and agree as set forth in Exhibit E.
(c) If the Indemnifying Party and the Indemnified Party are unable to agree with respect to a procedural matter arising under Section 10.03(b)(iii), the Indemnifying Party and the Indemnified Party shall, within 10 days after notice of disagreement given by either party, agree upon a third-party referee ("Referee"), who shall be an environmental attorney or environmental consultant as appropriate under the circumstances and who shall have the authority to review and resolve the disputed matter. The parties shall present their differences in writing (each party simultaneously providing to the other a copy of all documents submitted) to the Referee and shall cause the Referee promptly to review any facts, law or arguments either the Indemnifying Party or the Indemnified Party may present. The Referee shall be retained to resolve specific differences between the parties within the range of such differences. Either party may request that all discussions with the Referee by either party be in each other's presence. The decision of the Referee shall be final and binding unless both the Indemnifying Party and the Indemnified Party agree. The parties shall share equally all costs and fees of the Referee.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person Party to any insurance benefits or other claims or benefits of the Indemnified Person Party with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Samples: Reorganization, Recapitalization and Stock Purchase Agreement (True Temper Sports Inc)
Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant Any Person entitled to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification be indemnified under this Article X (the “Indemnified PersonParty”) shall promptly give written notice to the Party party hereto from whom such indemnification is may be sought (the “Indemnifying Party”) promptly (and in of any event within 10 days) after pending or threatened Action against the Indemnified Person (or, if Party of which the Indemnified Person is a corporation, any officer or director of the Indemnified Person) Party becomes aware of the facts giving that has given or would reasonably be expected to give rise to such claim for right of indemnification with respect to such Action (an a “Indemnified Third-Party Claim”), which notice shall specify in indicating, with reasonable detail specificity, the factual nature of such Third-Party Claim, the basis therefor, a copy of any material documentation received from the third party, the amount and calculation of the Losses (if then known) for which the Indemnified Claim, state Party is entitled to indemnification under this Article X. A failure by the amount Indemnified Party to give notice of Damages (a Third-Party Claim pursuant to this Section 10.05(a) or if not known, a good faith estimate to tender the defense of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Third-Party Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.0210.05(b) shall not limit the obligations of the Indemnifying Party under this Article X, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claimmaterially prejudiced thereby.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant With respect to Section 7.03(a), the Indemnifying Party will be entitled to assume the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third any Third-Party Claim, the Indemnifying Party under this Article X shall have the right, but not the obligation, to assume the control and defense, at its own expense and by counsel of its own choosing (who shall be reasonably acceptable to the Indemnified Party), of such Third-Party Claim and any Third-Party Claims related to the same set of facts by providing written notice to the Indemnified Party as soon as reasonably possible, but in any event within thirty (30) days of receiving notice of the Third-Party Claim pursuant to Section 10.05(a); provided that (A) subject to and in accordance with the other provisions of this Section 10.05, the Indemnifying Party shall only be entitled to assume the control and defense of such Third-Party Claim if it agrees to be responsible for and indemnify and hold harmless the Indemnified Party from the Third Party Claims, and (B) the Indemnifying Party shall not be liable entitled to assume the control and defense of such Third-Party Claim, and shall pay the reasonable fees and expenses of counsel retained by the Indemnified Person for any legal fees Party, if: (i) such Third-Party Claim relates to, or expenses subsequently incurred by such Indemnified Person arises in connection therewith. Notwithstanding anything in this Section 7.03 to with, a criminal Action; (ii) a conflict of interest exists between the contrary, until such time as applicable Indemnified Party and the Indemnifying Party assumes with respect to the defense and control of a Third such Third-Party Claim as provided in this Section 7.03, (including if there are specific defenses available to the Indemnified Person shall have the right Party or any of its Affiliates that are different from or additional to defend such Third Party Claim, subject those available to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or and that could be materially adverse to the Indemnifying Party); (iii) upon petition by the Indemnified Person is defending and controlling any such Third Party ClaimParty, it shall select counsel, contractors, experts and consultants an appropriate court of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with competent jurisdiction rules that the Indemnifying Party in connection with any Third failed or is failing to vigorously prosecute or defend such Third-Party Claim; or (iv) the Third-Party Claim seeks an order, injunction or other equitable relief or relief for other than monetary damages against the Indemnified Party (or, in case of Acquiror being the Indemnified Party, any of its Affiliates, including the Transferred Entities).
(c) The If the Indemnifying Party shall be authorized so undertakes to consent control and defend any such Third-Party Claim pursuant to a Section 10.05(b), (i) the Indemnified Party shall, at the Indemnifying Party’s cost and expense, reasonably cooperate with the Indemnifying Party and its counsel in the defense against, and settlement of, or the entry of any judgment arising from, any Third such Third-Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, Claim and (Cii) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of keep the Indemnified Person to Party timely appraised of any insurance benefits or other claims or benefits of the Indemnified Person material developments (including all proposed settlement offers) with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Third-Party Claim described in Schedule A-17 (and the “MSA Matter”)Indemnified Party shall be entitled to receive copies of, the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of a reasonable opportunity to provide comments to, all developments pleadings, notices and communications with respect to such Third Third-Party Claim the Indemnified Party reasonably requests, and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and Indemnifying Party shall consider in good faith any such comments or recommendations made by the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to thereto; provided, however, that the MSA Matter (including through Indemnifying Party shall not settle any approval of or consent to any action of the MSA joint venture) such Third-Party Claim without the express written consent of Parent, such consent the Indemnified Party (not to be unreasonably withheld, conditioned or delayed) unless such settlement (A) does not involve any non-monetary relief against or any finding or admission of any violation of Law or wrongdoing by the Indemnified Party or any of its Affiliates, (B) expressly and unconditionally releases the Indemnified Party and its Affiliates from all liabilities and obligations with respect to such Third-Party Claim and (C) any monetary damages are borne solely by the Indemnifying Party and, in such case, the Indemnifying Party shall notify the Indemnified Party in writing prior to effecting any settlement and shall make available a copy of the settlement agreement for the Indemnified Party’s review prior to execution thereof. Subject to the foregoing, if the Indemnifying Party so undertakes to control and defend any such Third-Party Claim, the Indemnified Party shall have the right to participate in, but not control, the defense of such Action at its own cost and expense, and to employ separate legal counsel, which legal counsel shall cooperate with the Indemnifying Party and its legal counsel.
(d) In the event the Indemnifying Party does not elect, or is not permitted, to assume control of the defense of a Third-Party Claim pursuant to Section 10.05(c), then the Indemnified Party shall have the right to assume the control and defense (the reasonable costs and expense of which will be borne by the Indemnifying Party) of such Third-Party Claim at its sole discretion with counsel of its own choosing. In such case, (i) the Indemnifying Party shall reasonably cooperate with the Indemnified Party and its counsel in the defense against, and settlement of, any such Third-Party Claim and (ii) the Indemnified Party shall keep the Indemnifying Party timely appraised of any material developments (including all proposed settlement offers) with respect to such Third-Party Claim and the Indemnifying Party shall be entitled to receive copies of such pleadings, notices and communications with respect to any Third-Party Claim as the Indemnifying Party may reasonably request; provided however, that the Indemnified Party may not settle any Third-Party Claim without the written consent of the Indemnifying Party (not to be unreasonably withheld, conditioned or delayed). If the Indemnifying Party does not assume the control and defense of a Third-Party Claim, it shall nevertheless be entitled to participate in, but not control, the defense of such Action at its own cost and expense and to employ separate legal counsel at its own cost and expense, and the Indemnifying Party shall keep the Indemnified Party reasonably advised of the status of such Third-Party Claim and the defense thereof and shall consider in good faith recommendations made by the Indemnified Party with respect thereto. For the avoidance of doubt, Article VIII, and not this Section 10.05, shall govern the control and conduct of Tax Contests and Tax-related proceedings (excluding proceedings in which Taxes only represent ancillary Losses incurred in connection with a non-Tax claim that is otherwise described in this Section 10.05).
(e) In the event that any Indemnified Party has or may have an indemnification claim against any Indemnifying Party under this Article X that does not involve a Third-Party Claim, the Indemnified Party shall promptly give written notice thereof to the Indemnifying Party indicating, with reasonable specificity, the nature of such claim, the basis therefor and the amount and calculation of the Losses (if then known) for which the Indemnified Party is entitled to indemnification under this Article X. A failure by the Indemnified Party to give notice in a timely manner pursuant to this Section 10.05(e) shall not limit the obligations of the Indemnifying Party under this Article X, except to the extent such Indemnifying Party is materially prejudiced thereby. If the Indemnifying Party disputes its liability with respect to such claim, the Indemnifying Party and the Indemnified Party shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations, such dispute shall be resolved by litigation in the appropriate court of competent jurisdiction set forth in Section 12.11(a).
(f) Subject to the provisions of this Section 10.05, Acquiror and the Transferred Entities shall be permitted to take reasonable provisional measures to the extent necessary to defend Acquiror, the Transferred Entities and/or the Business against Third-Party Claims.
Appears in 1 contract
Samples: Transaction Agreement (Endeavor Group Holdings, Inc.)
Procedures. (a) If any Parent Person who or which is entitled to seek indemnification under Section 11.2 (an “Indemnified Party”) receives notice of the assertion or commencement of any Third-Party Claim against such Indemnified Party shall seek indemnification pursuant with respect to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), which the Person seeking indemnification (the “Indemnified Person”) shall give written notice to the Party from against whom or which such indemnification is being sought (the an “Indemnifying Party”) promptly (and is obligated to provide indemnification under this Agreement, the Indemnified Party will give such Indemnifying Party reasonably prompt written notice thereof, but in any event within 10 days) not later than 20 days after receipt of such written notice of such Third-Party Claim. Such notice by the Indemnified Person (orParty will describe the Third-Party Claim in reasonable detail, will include copies of all available material written evidence thereof and will indicate the estimated amount, if the Indemnified Person is a corporationreasonably estimable, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to may be sustained by the Indemnified Party. The Indemnifying Party or (ii) such notice is not delivered will have the right to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claimparticipate in, or the commencement of any Proceedingor, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such giving written notice to the Indemnifying Party shall be accompanied by a copy Indemnified Party, to assume, the defense of any papers theretofore served on or delivered Third-Party Claim at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel (which will be reasonably satisfactory to the Indemnified Person Party), and the Indemnified Party will cooperate in connection with good faith in such Third Party Claimdefense.
(b) In Any Indemnifying Party will have the event of receipt of right to defend the Indemnified Party against any third party claim for which it is entitled to indemnification from such Indemnifying Party under this Article 11 with counsel reasonably satisfactory to the Indemnified Party so long as (i) the Indemnifying Parties notifies the Indemnified Party in writing within 15 days after the Indemnified Party has given notice of a the Third Party Claim that all of the Indemnifying Parties will indemnify the Indemnified Party from and against the entirety of Damages the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim to the extent provided in Section 11.2, (ii) the Indemnifying Parties provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Parties will have the financial resources to defend against the Third Party Claim and fulfill their indemnification obligations hereunder, (iii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, (iv) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Person pursuant Party, likely to Section 7.03(a)establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party, and (v) the Indemnifying Parties diligently conducts the defense of the Third Party Claim. So long as the Indemnifying Party will be entitled has undertaken to assume conduct the defense and control of such the Third Party Claim subject to in accordance with the provisions of this foregoing Section 7.03(b11.3(b). After written notice by the Indemnifying Party to , (i) the Indemnified Person of Party may retain separate co-counsel at its election to assume sole cost and expense and participate in the defense and control of a the Third Party Claim, (ii) the Indemnified 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 Indemnifying Party, and (iii) the Indemnifying Party shall keep the Indemnified Party informed as to the status of the claim for which it is providing a defense. Notwithstanding anything to the contrary herein, in the event that (w) any of the conditions in this Section 11.3(b) is or becomes unsatisfied; (x) the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 have employed counsel reasonably satisfactory to the contrary, until Indemnified Party to defend such time as action within thirty (30) days after the Indemnifying Party assumes received notice of the defense and control of a Third Party Claim as provided in this Section 7.03, Claim; (y) the Indemnified Person Party shall have reasonably concluded, based upon written advice of counsel, that it has defenses available to it that are different from or additional to those available to the Indemnifying Party (in which case the Indemnifying Party shall not have the right to defend direct the defense of such Third action on behalf of the Indemnified Party Claim, subject with respect to such different defenses); or (z) representation of such Indemnified Party by the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between such Indemnified Party and any other party represented by such counsel in such proceeding, then the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereofmay defend against, and shall diligently and promptly pursue consent to the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to entry of any judgment or enter into any settlement with respect to, the Third Party Claim were for its own account in any manner it may deem appropriate (and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The the Indemnified Person shallParty need not consult with, and shall cause each of its Affiliates and Representatives toor obtain any consent from, cooperate fully with the any Indemnifying Party in connection with any therewith) and, the Indemnifying Parties will be responsible for the Indemnified Party’s costs of defending against the Third Party Claim (including reasonable attorneys’ fees and expenses), and the Indemnifying Parties will remain responsible for the entirety of the Damages the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim.
(c) Any claim by an Indemnified Party on account of Damages which does not result from a Third-Party Claim (a “Direct Claim”) will be asserted by giving the Indemnifying Party written notice thereof. The Indemnifying Party shall will have a period of 20 days within which to respond in writing to such Direct Claim. If the Indemnifying Party does not so respond within such 20 day period, the Indemnifying Party will be authorized deemed to consent to a settlement ofhave rejected such claim, or the entry of any judgment arising from, any Third Party Claims, and in which event the Indemnified Person shall consent Party will be free to a settlement of, or the entry of any judgment arising from, pursue such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or remedies as may be available to the conduct Indemnified Party on the terms and subject to the provisions of that Person’s business, (B) such settlement this Agreement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Partyat law.
(d) If an Indemnifying A failure to give timely notice or to include any specified information in any notice as provided in Section 11.3(a) or 11.3(b) will not affect the rights or obligations of any Party makes any payment on an Indemnified Claimhereunder, the Indemnifying Party shall be subrogated, except and only to the extent that, as a result of such paymentfailure, any Party which was entitled to all rights and remedies receive such notice was deprived of the Indemnified Person its right to recover any payment under its applicable insurance benefits coverage or other claims or benefits was otherwise materially prejudiced as a result of the Indemnified Person with respect to such claimfailure.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed.
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Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant A Person that may be entitled to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification be indemnified under this Agreement (the “Indemnified PersonParty”) shall give written notice to promptly notify the Party from whom liable (or who may be liable) for such indemnification is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes writing upon becoming aware of the facts giving rise to such a claim for indemnification (or a possible claim against an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement Party in respect of which such Indemnified Claim arises Party may seek indemnity pursuant to this Agreement (including a claim or possible claim by a third party against the Indemnified Party, such claim or possible claim by a third party being a “Third-Party Claim”), describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim or demand indemnification therefor. The and the Covered Losses incurred or suffered as a result thereof; provided that the failure of an Indemnified Person to provide such notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver release the Indemnifying Party from any of that Person’s claims to indemnification pursuant to Section 7.02its obligations under this Article IX, except to the extent that (i) any the Indemnifying Party suffers actual loss or prejudice as a result of such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claimdelay.
(b) In Upon receipt of a notice of a Third-Party Claim for indemnity from an Indemnified Party pursuant to Section 9.2 or Section 9.3:
(i) The Indemnifying Party will be entitled, by notice to the event Indemnified Party delivered within twenty (20) Business Days of the receipt of notice of a Third such Third-Party Claim from an Indemnified Person pursuant to Section 7.03(a)Claim, the Indemnifying Party will be entitled to assume the defense and control of such Third Third-Party Claim subject (at the expense of such Indemnifying Party). Notwithstanding an election to assume the provisions defense of such Third-Party Claim, the Indemnified Party shall have the right to employ one separate co-counsel and to participate in the defense as counsel of record, if applicable, in such Proceeding, and the Indemnifying Party shall bear the reasonable fees, costs and expenses of such separate counsel if (A) there exists a material conflict of interest, as advised by outside counsel for the Indemnified Party, between the Indemnified Party and the Indemnifying Party in connection with the defense of the Third-Party Claim in which both the Indemnified Party and Indemnifying Party are defendants, that would make representation by the same counsel or the counsel selected by the Indemnifying Party inappropriate, (B) such Third-Party Claim seeks an injunction or other equitable relief against the Indemnified Party or (C) such Third-Party Claim is related to or otherwise arises in connection with any criminal or regulatory enforcement Proceeding. In any other event not set forth in the preceding sentence, the Indemnifying Party shall allow the Indemnified Party a reasonable opportunity to participate in the defense of such Third-Party Claim with its own counsel and at its own expense.
(ii) If the Indemnifying Party does not assume the defense and control of any Third-Party Claim pursuant to this Section 7.03(b9.4(b). After written notice , the Indemnified Party will be entitled to control such defense in a reasonably appropriate manner (and the costs of such defense shall be borne by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claimextent they constitute Covered Losses), but the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person may nonetheless participate in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third such Third-Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to with its own counsel and at its own expense.
(iii) Regardless of whether the Indemnifying Party or the Indemnified Person Party is defending and controlling any such Third entitled to control the defense of the Third-Party Claim, it shall select counsel, contractors, experts each of the Indemnifying Party and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Indemnified Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and respective Representatives to, reasonably cooperate fully with the other in the defense of any Third-Party Claim governed by this Article IX, including by furnishing Books and Records, personnel and witnesses, as appropriate for any defense of such Third-Party Claim, and shall keep such Persons informed of all developments relating to any such Third-Party Claims, and provide copies of all relevant correspondence and documentation relating thereto; provided that either party may restrict the provision of such information to the extent that (A) applicable Law requires such party or any of its Representatives, as applicable, to restrict or prohibit the provision of such information, (B) providing such information would breach any obligation of confidentiality to which a party or any of its Representatives may be subject, (C) in the case of Sellers or their Representatives restricting the provision of such information, the information relates to the Transaction or the other transactions contemplated by this Agreement or the other Transaction Documents or (D) providing disclosure of any such information would reasonably be expected to result in the loss or waiver of the attorney–client or other applicable privilege or protection (provided, that such party and its Representatives shall use its reasonable best efforts to enter into such joint defense agreements or other arrangements, as appropriate, so as to allow for such disclosure in a manner that does not result in the loss of such privilege or protection). For the avoidance of doubt, the Indemnifying Party shall reimburse the Indemnified Party for its reasonable internal costs of legal department and IT employees and out-of-pocket expenses paid to third parties, in each case in connection with the Indemnified Party’s cooperation with the Indemnifying Party in connection with any Third Party Claimunder this Section 9.4(b)(iii).
(civ) The Other than with respect to any Specified Liability, if the Indemnifying Party has assumed the defense and control of a Third-Party Claim, it shall not be authorized to consent to a settlement or compromise of, or the entry of any judgment Judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Third-Party Claim shall be consented to by any Indemnified Person without the express prior written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall (which consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent will not to be unreasonably withheld, conditioned or delayed) unless (A) the Indemnified Party, as a condition to settlement, is given a complete and unconditional release of any and all Liabilities by all relevant parties to such Third-Party Claim, (B) the damages payable under the settlement are limited only to monetary payments for which the Indemnified Party is fully indemnified by the Indemnifying Party (net of any proceeds or Tax Benefits described in Section 9.6) and (C) such Third-Party Claim does not involve any non-monetary relief of any kind (including any injunctive relief) against any Indemnified Party or finding or admission of any violation of Law or admission of any wrongdoing by any Indemnified Party. No Indemnified Party will consent to the entry of any Judgment or enter into any settlement or compromise with respect to a Third-Party Claim without the prior written consent of the Indemnifying Party (which consent will not be unreasonably withheld, conditioned or delayed).
(c) Notwithstanding anything to the contrary in this Agreement (including Section 9.4(b)), Sellers shall have the exclusive right to control in all respects, and neither Purchaser nor any of its Affiliates (including the Neptune Entities) will be entitled to participate in, any Tax Proceeding with respect to (i) any Tax Return of Sellers or any of their Affiliates (other than the Neptune Entities) or (ii) any consolidated, affiliated, fiscal, loss sharing, combined or similar group of which Sellers or any of their Affiliates (other than a Neptune Entity) is a member (including any Combined Tax Return).
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Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person A party seeking indemnification (the “Indemnified PersonParty”) in respect of, arising out of or involving a Loss or a claim or demand made by any person against the Indemnified Party (a “Third Party Claim”) shall give written deliver notice (a “Claim Notice”) in respect thereof to the Party from party against whom such indemnification indemnity is sought (the “Indemnifying Party”) promptly (with reasonable promptness after receipt by such Indemnified Party of notice of the Third Party Claim, and in any event within 10 days) after shall provide the Indemnified Person (or, if Indemnifying Party with the Indemnified Person is a corporationamount or the estimated amount of damages sought thereunder to the extent then ascertainable, any officer or director other remedy sought thereunder, any relevant time constraints relating thereto, a reasonably detailed explanation of the Indemnified Person) becomes aware of the facts events giving rise to such claim for indemnification (an “Indemnified Claim”)Third Party Claim and any other material details pertaining thereto, which notice shall specify in reasonable detail each case, to the factual basis of extent such information is reasonably available to the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification thereforParty. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a)deliver a Claim Notice, or any delay in providing such noticehowever, shall not constitute a waiver release the Indemnifying Party from any of that Person’s claims to indemnification pursuant to Section 7.02, its obligations under this Article VII except to the extent that the Indemnifying Party is materially prejudiced by such failure.
(ib) (x) If the Indemnifying Party is any Seller or Xxxxxx, in the event the Losses arising from a Third Party Claim are not reasonably likely to exceed the Sellers’ or Xxxxxx’x maximum indemnification obligations under this Agreement, or (y) if the Indemnifying Party is Buyer, the Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 days of receipt of a Claim Notice from the Indemnified Party in respect of such failure or delay in giving notice causes Third Party Claim, to assume the amounts paid or to defense thereof at the expense of the Indemnifying Party (which expenses shall not be paid applied against any indemnity limitation herein) with counsel selected by the Indemnifying Party and satisfactory to the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not be greater than they entitled to assume the defense of any Third Party Claim for equitable or injunctive relief or any claim that would impose criminal liability or damages, and the Indemnified Party shall have the right to defend, at the expense of the Indemnifying Party, any such Third Party Claim. The Indemnifying Party shall be liable for the out-of-pocket fees and expenses of counsel retained by the Indemnified Party for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party does not expressly elect to assume the defense of such Third Party Claim within the time period and otherwise would in accordance with the first sentence of this Section 7.4(b), the Indemnified Party shall have the sole right to assume the defense of and to settle such Third Party Claim. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been or otherwise results specifically authorized in prejudice to writing by the Indemnifying Party or (ii) such notice is not delivered the named parties to the Third Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party prior to of both the expiration Indemnifying Party and such Indemnified Party may present such counsel with a conflict of the applicable survival period set forth in Section 7.01interest. If the Indemnified Claim arises from Indemnifying Party assumes the assertion defense of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any the Indemnified Party shall, at the Indemnifying Party’s expense, cooperate with the Indemnifying Party in such notice defense and make available to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to all witnesses, pertinent records, materials and information in the Indemnified Person in connection with such Third Party Claim.
(b) In Party’s possession or under the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party will be entitled to assume assumes the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a any Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to not, without the contrary, until such time as the Indemnifying Party assumes the defense and control prior written consent of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party ClaimParty, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party enter into any settlement or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense compromise or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and if such settlement, compromise or judgment (1) involves a finding or admission of wrongdoing, (2) does not include an unconditional written release by the claimant or plaintiff of the Indemnified Party from all Proceedings relating theretoliability in respect of such Third Party Claim or (3) imposes equitable remedies or any obligation on the Indemnified Party other than solely the payment of money damages for which the Indemnified Party will be indemnified hereunder.
(c) An Indemnified Party seeking indemnification in respect of, including the defense arising out of claims or involving a Loss or a claim or demand hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party (a “Direct Claim”) shall deliver a Claim Notice in respect thereof by Mission Support Allianceto the Indemnifying Party with reasonable promptness after becoming aware of facts supporting such Direct Claim, LLCand shall provide the Indemnifying Party with such information with respect thereto as the Indemnifying Party may reasonably request. The failure to deliver a Claim Notice, however, shall consult with Parent regarding not release the Indemnifying Party from any material developments of its obligations under this Article VII except to the extent that the Indemnifying Party is materially prejudiced by such failure and decisions shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party or otherwise than pursuant to this Article VII. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party shall pay such lesser amount promptly to the Indemnified Party, without prejudice to or waiver of the Indemnified Party’s claim for the difference.
(d) The indemnification required hereunder shall be made by prompt payment by the Escrow Agent (to the extent of any amounts then held in the defense Indemnity Escrow Fund if applicable) or the Indemnifying Party (to the extent of any amounts not then held in the Indemnity Escrow Fund if applicable) of the MSA Matter amount of actual Losses in connection therewith, as and when bills are received by the Indemnifying Party or Losses incurred have been notified to the Indemnifying Party, within five Business Days after receipt of notice of such Losses.
(e) The Indemnifying Party shall consider not be entitled to require that any action be made or brought against any other Person before action is brought or claim is made against it hereunder by the Indemnified Party.
(f) Notwithstanding the provisions of Section 8.9, each Indemnifying Party hereby consents to the nonexclusive jurisdiction of any court in good faith the views of Parent which an Action in respect of the MSA Matter. Neither Spinco nor a Third Party Claim is brought against any Spinco Indemnified Party shall consent or agree to for purposes of any settlement or entry of judgment claim that an Indemnified Party may have under this Agreement with respect to such Action or the MSA Matter (including through any approval of or consent matters alleged therein and agrees that process may be served on each Indemnifying Party with respect to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayedclaim anywhere.
Appears in 1 contract
Samples: Stock Purchase Agreement (Compass Group Diversified Holdings LLC)
Procedures. (ai) If After receipt by any Parent Aventis Indemnified Party shall seek indemnification pursuant to Section 7.02(a)or any ViroPharma Indemnified Party, or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification as applicable (the “"Indemnified Person”Party") shall give written notice to the Party from whom such indemnification is sought (the “Indemnifying Party”) promptly (and in of any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand Party will seek indemnification therefor. The failure of an Indemnified Person from the Party required to provide notice in accordance with such indemnification under this Section 7.03(a10 (the "Indemnifiying Party"), or the Indemnified Party must, as a condition to the Indemnified Party's right to indemnification under this Section 10, provide prompt written notice thereof to the Indemnifying Party (the "Claim Notice"); provided that any delay in providing such notice, Claim Notice shall not constitute a waiver of relieve the Indemnifiying Party from any liability that Person’s claims it may have to indemnification pursuant to the Indemnified Party under this Section 7.02, 10 except to the extent that the Indemnified Party is materially prejudiced by such delay. The Claim Notice shall (iA) specify in reasonable detail and in good faith the nature of the claim, (B) specify the amount or in good faith the estimate of the Losses being asserted and (C) state the basis under this Settlement Agreement for seeking such indemnification. In no event (whether or not the Indemnified Party is controlling the defense, compromise or settlement of such claim) will the Indemnified Party admit any responsibility or liability with respect to any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to claim and the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered have no liability to the Indemnified Person in connection Party with respect to such Third claim if the Indemnified Party Claimmakes any such admission.
(bii) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant Subject to Section 7.03(a)10(d)(iii) and Section 10(d)(iv) of this Settlement Agreement, the Indemnifying Party will be entitled to assume may undertake the defense defense, compromise and control settlement of such Third Party Claim subject to the provisions claim by representatives of this Section 7.03(b). After written notice by the Indemnifying Party its own choosing reasonably acceptable to the Indemnified Person Party. The assumption of its election to assume the defense defense, compromise and control settlement of a Third Party Claim, any such claim by the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to an acknowledgment of the contrary, until such time as obligation of the Indemnifying Party assumes the defense and control of a Third to indemnify such Indemnified Party Claim as provided in this Section 7.03, with respect to such claim. If the Indemnified Person Party desires to participate in, but not control, any such defense, compromise and settlement, it may do so at its sole cost and expense. The Indemnified Party shall have the right to defend such Third Party Claimundertake the defense, and, subject to Section 10(d)(iii) and Section 10(d)(iv) of this Settlement Agreement, compromise and settlement of such claim with counsel of its own choosing, and the limitations set forth costs and expenses of the Indemnified Party in this Section 7.03, in such manner connection therewith shall be included as it may deem appropriate. Without regard to whether a part of the indemnification obligations of the Indemnifying Party under this Section 10, unless the Indemnifying Party, within thirty (30) days (or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigationcase of litigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating fifteen (15) days) after written notice of such claim has been given to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and by the Indemnified Person shall consent to a settlement ofParty, or the entry of any judgment arising from, such Third Party Claims, if both: (Ai) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or expressly acknowledges in writing to the conduct of Indemnified Party that Person’s businessthat, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of as between the Indemnified Person or any of its Affiliates, Party and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogatedsolely obligated to satisfy or discharge the obligations set forth in the Claim Notice, and (ii) takes all reasonable and appropriate steps to affirmatively undertake the extent defense of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(eiii) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that Notwithstanding the provisions of Section 5.02(b10(d)(ii) shall apply of this Settlement Agreement to the ASBCA Matter. With respect extent that (A) any claim or the litigation or resolution thereof (x) seeks an equitable remedy, or (y) is asserted against both the Indemnifying Party and the Indemnified Party and the Indemnified Party reasonably concludes that there are defenses available to Indemnified Party which are different or additional to those of the Third Party Claim described in Schedule A-17 Indemnifying Party, or (B) upon petition by the “MSA Matter”)Indemnified Party, the Parties acknowledge and agree an appropriate court rules that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect Indemnifiying Party failed or is failing to defend such Third Party Claim and all Proceedings relating theretoclaim diligently, including then the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent have the right to control the defense, and subject to Section 10(d)(iv) of this Settlement Agreement, the compromise and settlement of such claim and the costs and expenses of the Indemnifying Party in connection therewith shall be included as part of the indemnification obligations of the Indemnifying Party under this Section 10. If the Indemnified Party elects to exercise such right, then the Indemnifying Party shall have the right to participate in, but not control, the defense, compromise and settlement of such claim at the Indemnifying Party's sole cost and expense.
(iv) Neither the Indemnified Party nor the Indemnifying Party shall settle or agree to compromise any such claim, regardless of whether it is controlling the defense, settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) compromise thereof without the express prior written consent of Parent, such the other (which consent shall not to be unreasonably withheld, conditioned delayed or delayedconditioned).
(v) At the expense of the Indemnifying Party, the Indemnifying Party and the Indemnified Party shall cooperate with and render to each other such assistance as may reasonably be requested in order to insure the proper and adequate defense of any such claim or proceeding which assistance shall include making appropriate personnel reasonably available for any investigation, discovery, hearing or trial.
Appears in 1 contract
Procedures. Claims for indemnification under this Agreement shall be asserted and resolved as follows:
(a) If any Parent Person who or which is entitled to seek indemnification under Section 9.2 (an “Indemnified Party”) receives notice of the assertion or commencement of any claim asserted against an Indemnified Party by a third party (“Third Party Claim”) in respect of any matter that is subject to indemnification under Section 9.2, the Indemnified Party shall seek indemnification promptly:
(i) notify the Party obligated to the Indemnified Party pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification (the “Indemnified Person”) shall give written notice to the Party from whom such indemnification is sought 9.2 above (the “Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified PersonThird Party Claim; and
(ii) becomes aware of transmit to the facts giving rise to such claim for indemnification Indemnifying Party a written notice (an “Indemnified ClaimClaim Notice”), which notice shall specify ) describing in reasonable detail the factual basis nature of the Indemnified Third Party Claim, state a copy of all papers served with respect to such claim (if any), the amount of Damages (or if not known, a good faith Indemnified Party’s best estimate of the amount of Damages) Losses attributable to the Third Party Claim and the method basis of computation thereof, contain a reference the Indemnified Party’s request for indemnification under this Agreement. Failure to the provision of this Agreement in respect of which timely provide such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, Notice shall not constitute a waiver affect the right of that Personthe Indemnified Party’s claims to indemnification pursuant to Section 7.02hereunder, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been is materially prejudiced by such delay or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claimomission.
(b) In The Indemnifying Party may elect to defend the event of receipt of notice of a Indemnified Party against such Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), Claim. If the Indemnifying Party will be entitled notifies the Indemnified Party that the Indemnifying Party elects to assume the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, then the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether Claim with counsel selected by the Indemnifying Party or (who shall be reasonably satisfactory to the Indemnified Person is defending and controlling any such Third Party ClaimParty), it shall select counselby all appropriate proceedings, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense to a final conclusion or settlement thereof, and shall diligently and promptly pursue at the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each discretion of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection accordance with any Third Party Claim.
(c) this Section 9.4(b). The Indemnifying Party shall be authorized to consent to a have full control of such defense and proceedings, including any compromise or settlement of, or thereof; provided that the entry of any judgment arising from, any Third Indemnifying Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber enter into any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person agreement without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party (which consent shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed); provided, further, that such consent shall not be required if:
(i) the settlement agreement contains a complete and unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such proceeding; and
(ii) the settlement agreement does not contain any consideration other than the payment of money which the Indemnifying Party agrees to pay. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim which the Indemnifying Party elects to contest, including the making of any related counterclaim against the Person asserting the Third Party Claim or any cross complaint against any Person. The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 9.4(b), and the Indemnified Party shall bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party shall have the right, exercisable in its sole discretion, to assume control of the defense of any Third Party Claim if (i) the Indemnifying Party advises such Indemnified Party in writing that the Indemnifying Party does not elect to defend, settle or compromise such Third Party Claim, or (ii) the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after receipt of the Claim Notice that the Indemnifying Party elects to undertake the defense thereof.
(c) If the Indemnifying Party does not notify the Indemnified Party that the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 9.4(b), then the Indemnified Party shall have the right to defend, and be reimbursed for its reasonable cost and expense (but only if the Indemnified Party is actually entitled to indemnification hereunder) in regard to the Third Party Claim with counsel selected by the Indemnified Party, by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party. In such circumstances, the Indemnified Party shall defend any such Third Party Claim in good faith and have full control of such defense and proceedings; provided, however, that the Indemnified Party may not enter into any compromise or settlement of such Third Party Claim if indemnification is to be sought hereunder, without the Indemnifying Party’s consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 9.4(c), and the Indemnifying Party shall bear its own costs and expenses with respect to such participation.
(d) Any claim by an Indemnified Party on account of Losses that does not result from a Third Party Claim (a “Direct Claim”) will be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) days after the Indemnified Party becomes aware of the events that gave rise to such Direct Claim; provided, that failure to provide timely notice shall not affect the Indemnified Party’s indemnification hereunder, except to the extent that the Indemnifying Party is actually materially prejudiced by such delay or omission. Such notice by the Indemnified Party will describe the Direct Claim in reasonable detail and will indicate the estimated amount, if reasonably practicable, of Losses that has been or may be sustained by the Indemnified Party. The Indemnifying Party will have a period of five (5) Business Days within which to respond in writing to such Direct Claim. If the Indemnifying Party does not so respond within such five (5) Business Day period, the Indemnifying Party will be deemed to have rejected such claim, in which event the Indemnified Party will be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Avangrid, Inc.)
Procedures. (a) If Thomxx Xxx xxx Gary Xxxxxxxx xxxll act as Representatives of the Significant Stockholders for all purposes of the Escrow Agreement and the indemnification provisions of this Article 10, are duly authorized to be such Representatives and may bind the Significant Stockholders with respect thereto. Promptly after the receipt by an Indemnified Party of notice or discovery of any Parent claim, damage or legal action or proceeding giving rise to indemnification rights under this Agreement, such Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), give the Person seeking indemnification (the “Indemnified Person”) shall give written notice to the Party party from whom such indemnification is sought (the “"Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages") and the method Escrow Agent written notice of computation thereofsuch claim, contain damage, legal action or proceeding (a reference "Claim"). A Parent Indemnified Party shall give notice of a Claim (a "Notice of Claim") to the provision Significant Stockholders by delivering such Notice of this Agreement in respect Claim to either of which such the Representatives. An Indemnified Party may assert a Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or at any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party time prior to the expiration of the applicable survival period in Section 10.1. No delay on the part of an Indemnified Party in giving an Indemnifying Party a Notice of Claim will relieve such Indemnifying Party of any of its obligations under this Article 10 (provided that such Notice of Claim is timely given prior to the expiration of the applicable survival period in Section 10.1) unless (and then only to the extent) that such Indemnifying Party is materially prejudiced thereby. Within twenty (20) days of delivery of such written notice, the Indemnifying Party may, at the expense of such Indemnifying Party, elect to take all necessary steps properly to contest any Claim involving third parties or to prosecute such Claim to conclusion or settlement satisfactory to the Indemnified Party, both as set forth in Section 7.01. If 10.5 herein, or notify the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the Indemnifying Party will be entitled to assume the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claimwriting that it disputes the claim for indemnity.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person The party seeking indemnification under Section 10.2 (the “"Indemnified Person”Party") shall agrees to give written prompt notice to the Party from party against whom such indemnification indemnity is sought (the “"Indemnifying Party”") promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceedingsuit, brought by a Person action or proceeding ("Claim") in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto that is not a Parent Company or a Spinco Company (a “Third the Indemnifying Party Claim”), any such notice may reasonably request. The failure to so notify the Indemnifying Party shall be accompanied by a copy not relieve the Indemnifying Party of any papers theretofore served on or delivered its obligations hereunder, except to the Indemnified Person in connection with extent such Third Party Claimfailure shall have prejudiced the Indemnifying Party.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the The Indemnifying Party will shall be entitled to assume participate in the defense and control of such Third Party any Claim subject to the provisions of this Section 7.03(b). After written notice asserted by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a any third party ("Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim") and, subject to the limitations set forth in this Section 7.03Section, shall be entitled to control and appoint lead counsel reasonably satisfactory to the party seeking indemnification for such defense, in such manner as it may deem appropriate. Without regard to whether each case at its expense.
(c) If the Indemnifying Party or shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 10.3, (i) the Indemnifying Party shall obtain the prior written consent of the Indemnified Person is defending and controlling Party (which shall not be unreasonably withheld) before entering into any settlement of such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in if the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and does not release the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, from all liabilities and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and all Proceedings relating thereto, including (ii) the defense of claims in respect thereof by Mission Support Alliance, LLC, Indemnified Party shall consult with Parent regarding any material developments and decisions be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the MSA Matter Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent furnish or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not cause to be unreasonably withheldfurnished such records, conditioned information and testimony, and attend such conferences, discovery proceedings, hearing, trials or delayedappeals, as may be reasonably requested in connection therewith.
Appears in 1 contract
Samples: Asset Purchase Agreement (Manufacturers Services LTD)
Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person A party seeking indemnification (the “"Indemnified Person”Party") in respect of a Loss arising out of or involving a claim or demand made against the Indemnified Party by any Person not a party to this Agreement (a "Third Party Claim") shall give written deliver notice (a "Claim Notice") in respect thereof to the Party from party against whom such indemnification indemnity is sought (the “"Indemnifying Party”") promptly (and in any event within 10 days) with reasonable promptness after the receipt by such Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director Party of notice of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Third Party Claim, state and shall provide the amount of Damages (or if not known, a good faith estimate of Indemnifying Party with such information with respect thereto as the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification thereforIndemnifying Party may reasonably request. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a)deliver a Claim Notice, or any delay in providing such noticehowever, shall not constitute a waiver release the Indemnifying Party from any of that Person’s claims to indemnification pursuant to Section 7.02, its obligations under this Article VIII except to the extent that the Indemnifying Party is actually prejudiced by such failure.
(ib) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 15 days of receipt of a Claim Notice from the Indemnified Party in respect of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party (which expenses shall not be applied against any such failure or delay in giving notice causes the amounts paid or to be paid indemnity limitation herein) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not expressly elect to assume the defense of such Third Party Claim within the time period and otherwise in accordance with the first sentence of this Section 8.4 (b), the Indemnified Party shall have the sole right to assume the defense of and to settle such Third Party Claim. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be greater than they otherwise would at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been or otherwise results specifically authorized in prejudice to writing by the Indemnifying Party or (ii) such notice is not delivered the named parties to the Third Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party prior to of both the expiration Indemnifying Party and such Indemnified Party may present such counsel with a conflict of the applicable survival period set forth in Section 7.01interest. If the Indemnified Claim arises from Indemnifying Party assumes the assertion defense of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any the Indemnified Party shall, at the Indemnifying Party's expense, cooperate with the Indemnifying Party in such notice defense and make available to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to all witnesses, pertinent records, materials and information in the Indemnified Person in connection with such Third Party Claim.
(b) In Party's possession or under the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), Party's control relating thereto as is reasonably requested by the Indemnifying Party. If the Indemnifying Party will be entitled to assume assumes the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a any Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to not, without the contrary, until such time as the Indemnifying Party assumes the defense and control prior written consent of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party ClaimParty, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party enter into any settlement or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense compromise or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and if such settlement, compromise or judgment (i) involves a finding or admission of criminal liability, (ii) does not include an unconditional written release by the claimant or plaintiff of the Indemnified Party from all Proceedings relating thereto, including Liability in respect of such Third Party Claim or (iii) imposes equitable remedies or any obligation on the defense Indemnified Party other than solely the payment of claims money damages for which the Indemnified Party will be indemnified hereunder subject to Section 8.5 below.
(c) An Indemnified Party seeking indemnification in respect of a Loss that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party (a "Direct Claim") shall deliver a Claim Notice in respect thereof by Mission Support Allianceto the Indemnifying Party with reasonable promptness after becoming aware of facts supporting such Direct Claim, LLCand shall provide the Indemnifying Party with such information with respect thereto as the Indemnifying Party may reasonably request. The failure to deliver a Claim Notice, however, shall consult with Parent regarding not release the Indemnifying Party from any material developments and decisions in of its obligations under this Article VIII except to the defense of extent that the MSA Matter Indemnifying Party is actually prejudiced by such failure and shall consider in good faith not relieve the views Indemnifying Party from any other obligation or Liability that it may have to the Indemnified Party pursuant to this Article VIII. If the Indemnifying Party does not notify the Indemnified Party within 30 days following its receipt of Parent a Claim Notice in respect of a Direct Claim that the MSA Matter. Neither Spinco nor any Spinco Indemnifying Party disputes its liability to the Indemnified Party hereunder, such Direct Claim specified by the Indemnified Party in such Claim Notice shall consent be conclusively deemed a Liability of the Indemnifying Party hereunder and the Indemnifying Party shall pay the amount of such Liability to the Indemnified Party on demand. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, such lesser amount shall be deemed a Final Loss Amount payable in accordance with Section 8.6 below, without prejudice to or agree waiver of the Indemnified Party's claim for the difference. 18
(d) The Indemnifying Party shall not be entitled to require that any settlement action be made or entry brought against any other Person before action is brought or claim is made against it hereunder by the Indemnified Party.
(e) Notwithstanding the provisions of judgment Section 10.9, each Indemnifying Party hereby consents to the nonexclusive jurisdiction of any court in which an Action in respect of a Third Party Claim is brought against any Indemnified Party for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Action or the MSA Matter (including through any approval of or consent matters alleged therein and agrees that process may be served on each Indemnifying Party with respect to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayedclaim anywhere.
Appears in 1 contract
Samples: Asset Purchase Agreement (MOVING iMAGE TECHNOLOGIES INC.)
Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person A party seeking indemnification (the “Indemnified PersonParty”) in respect of, arising out of or involving a Loss or a claim or demand made by any person against the Indemnified Party (a “Third Party Claim”) shall give written deliver notice (a “Claim Notice”) in respect thereof to the Party from whom such indemnification is sought Designated Representative, on behalf of the MBS Parties, or to the Buyer, as applicable (the “Indemnifying Party”) promptly (and in any event within 10 days) with reasonable promptness after the receipt by such Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director Party of notice of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Third Party Claim, state and shall provide the amount of Damages (or if not known, a good faith estimate of Indemnifying Party with such information with respect thereto as the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification thereforIndemnifying Party may reasonably request. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a)deliver a Claim Notice, or any delay in providing such noticehowever, shall not constitute a waiver release the Indemnifying Party from any of that Person’s claims to indemnification pursuant to Section 7.02, its obligations under this Article VIII except to the extent that the Indemnifying Party is materially prejudiced by such failure.
(ib) any The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 15 days of receipt of a Claim Notice from the Indemnified Party in respect of such failure or delay in giving notice causes Third Party Claim, to assume the amounts paid or to be paid defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not be greater than they entitled to assume the defense of any Third Party Claim for equitable or injunctive relief or any claim that would impose criminal liability or damages, and the Indemnified Party shall have the right to defend, at the expense of the Indemnifying Party, any such Third Party Claim. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party does not expressly elect to assume the defense of such Third Party Claim within the time period and otherwise would in accordance with the first sentence of this Section 8.4(b), the Indemnified Party shall have the sole right to assume the defense of and to settle such Third Party Claim. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been or otherwise results specifically authorized in prejudice to writing by the Indemnifying Party or (ii) such notice is not delivered the named parties to the Third Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party prior to of both the expiration Indemnifying Party and such Indemnified Party presents such counsel with a conflict of the applicable survival period set forth in Section 7.01interest. If the Indemnified Claim arises from Indemnifying Party assumes the assertion defense of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any the Indemnified Party shall, at the Indemnifying Party’s expense, cooperate with the Indemnifying Party in such notice defense and make available to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to all witnesses, pertinent records, materials and information in the Indemnified Person in connection with such Third Party Claim.
(b) In Party’s possession or under the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party will be entitled to assume assumes the defense and control of such Third Party Claim subject to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a any Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to not, without the contrary, until such time as the Indemnifying Party assumes the defense and control prior written consent of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party ClaimParty, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party enter into any settlement or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense compromise or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and if such settlement, compromise or judgment (i) involves a finding or admission of wrongdoing, (ii) does not include an unconditional written release by the claimant or plaintiff of the Indemnified Party from all Proceedings relating theretoliability in respect of such Third Party Claim or (iii) imposes equitable remedies or any obligation on the Indemnified Party other than solely the payment of money damages for which the Indemnified Party will be indemnified hereunder.
(c) An Indemnified Party seeking indemnification in respect of, including the defense arising out of claims or involving a Loss or a claim or demand hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party (a “Direct Claim”) shall deliver a Claim Notice in respect thereof by Mission Support Allianceto the Indemnifying Party with reasonable promptness after becoming aware of facts supporting such Direct Claim, LLCand shall provide the Indemnifying Party with such information with respect thereto as the Indemnifying Party may reasonably request. The failure to deliver a Claim Notice, however, shall consult not release the Indemnifying Party from any of its obligations under this Article VIII except to the extent that the Indemnifying Party is materially prejudiced by such failure and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party or otherwise than pursuant to this Article VIII.
(d) The indemnification required under Section 8.2 shall be made by payment by the Escrow Agent in accordance with Parent regarding the Escrow Agreement (to the extent of any material developments and decisions amounts then held in the defense Indemnity Escrow Fund if applicable) or the Indemnifying Party (to the extent of any amounts not then held in the Indemnity Escrow Fund if applicable) of the MSA Matter amount of actual Losses in connection therewith, as and shall consider in good faith when bills are received by the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Indemnifying Party shall consent or agree to any settlement or entry of judgment with respect Losses incurred have been notified to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayedIndemnifying Party.
Appears in 1 contract
Samples: Purchase Agreement (Barnes & Noble Education, Inc.)
Procedures. (a) If In order for a JD Finance Indemnified Party or a JD Group Indemnified Party (each, an “Indemnified Party”) to be entitled to any Parent indemnification provided for under this Agreement as a result of a Loss or a claim or demand made by any third Person against the Indemnified Party (a “Third-Party Claim”), such Indemnified Party shall seek indemnification pursuant deliver notice thereof to Section 7.02(a)JD Group or JD Finance, or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b)as the case may be, the Person seeking indemnification (the “Indemnified Person”) shall give written notice to the Party from whom such indemnification is sought (the “Indemnifying Party”) ), promptly (and in any event within 10 days) after the receipt by such Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director Party of written notice of the Indemnified Person) becomes aware of Third-Party Claim, describing in reasonable detail the facts giving rise to such any claim for indemnification (an “Indemnified Claim”)hereunder, which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount or method of Damages (or if not known, a good faith estimate computation of the amount of Damagessuch claim (if known) and such other information with respect thereto as the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification thereforIndemnifying Party may reasonably request. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, however, shall not constitute a waiver release the Indemnifying Party from any of that Person’s claims to indemnification pursuant to Section 7.02its obligations under this Article XII, except to the extent that the Indemnifying Party is actually prejudiced by such failure.
(ib) any An Indemnifying Party shall have the right, upon written notice to the Indemnified Party within thirty (30) days after receipt of notice from the Indemnified Party of the commencement of such failure or delay in giving notice causes Third-Party Claim, to assume the amounts paid or to be paid defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnified Party. If the Indemnifying Party or (ii) assumes the defense of such notice Third-Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party; provided, that, if, in the reasonable opinion of counsel for the Indemnified Party, there is not delivered to a conflict of interest between the Indemnified Party and the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claimParty, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy responsible for the reasonable fees and expenses of any papers theretofore served on or delivered one counsel to the such Indemnified Person Party in connection with such Third Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), defense. If the Indemnifying Party will be entitled to assume assumes the defense of any Third-Party Claim, the Indemnified Party shall reasonably cooperate with the Indemnifying Party in such defense and control of such Third Party Claim subject make available to the provisions of this Section 7.03(b). After written notice Indemnifying Party such witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party to the Indemnified Person of its election to assume assumes the defense and control of a Third any Third-Party Claim, the Indemnifying Party shall not be liable settle, compromise or discharge such Third-Party Claim without the prior written consent of the Indemnified Party, unless such settlement, compromise or discharge of such Third-Party Claim by its terms obligates the Indemnifying Party to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person pay the full amount of the Liability in connection therewithwith such Third-Party Claim, and releases the Indemnified Party completely in connection with such Third-Party Claim. Notwithstanding anything in this Section 7.03 to the contrary, until such time as Whether or not the Indemnifying Party assumes the defense and control of a Third Third-Party Claim as provided in this Section 7.03Claim, the Indemnified Person Party shall not admit any Liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third-Party Claim without the Indemnifying Party’s prior written consent.
(c) In the event any Indemnified Party should have a claim against an Indemnifying Party hereunder that does not involve a Third-Party Claim being asserted against or sought to be collected from such Indemnified Party, the right to defend Indemnified Party shall deliver notice of such Third Party Claim, subject claim promptly to the limitations set forth Indemnifying Party, describing in this Section 7.03reasonable detail the facts giving rise to any claim for indemnification hereunder, in the amount or method of computation of the amount of such manner claim (if known) and such other information with respect thereto as it may deem appropriate. Without regard to whether the Indemnifying Party or may reasonably request. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article XII except to the extent that the Indemnifying Party is prejudiced by such failure. The Indemnified Party shall reasonably cooperate and assist the Indemnifying Party in determining the validity of any claim for indemnity by the Indemnified Person is defending Party and controlling any in otherwise resolving such Third Party Claimmatters. Such assistance and cooperation shall include providing reasonable access to and copies of information, it shall select counselrecords and documents relating to such matters, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary furnishing employees to assist in the investigation, defense or settlement thereofand resolution of such matters and providing legal and business assistance with respect to such matters, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating in each case, to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to extent reasonably required by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Samples: Framework Agreement (JD.com, Inc.)
Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person The party seeking indemnification under Section 11.02 (the “Indemnified Person”"INDEMNIFIED PARTY") shall agrees to give written prompt notice in reasonable detail to the Party from party against whom such indemnification indemnity is sought (the “Indemnifying Party”"INDEMNIFYING PARTY") promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceedingsuit, brought by a Person action or proceeding in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto that is not a Parent Company or a Spinco Company (a “Third Party Claim”the Indemnifying may reasonably request. Except as otherwise provided in Section 11.02(c), any such notice the failure to so notify the Indemnifying Party shall be accompanied by a copy not relieve the Indemnifying Party of any papers theretofore served on or delivered its obligations hereunder, except to the Indemnified Person in connection with extent such Third Party Claimfailure shall have adversely prejudiced the Indemnifying Party.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the The Indemnifying Party will shall be entitled to assume participate in the defense and control of such Third Party any Claim subject to the provisions of this Section 7.03(b). After written notice asserted by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claimthird party ("THIRD PARTY CLAIM") and, subject to the limitations set forth in this Section 7.0311.03(c), shall be entitled to control and appoint lead counsel for such defense, in such manner as it may deem appropriate. Without regard to whether each case at its expense.
(c) If the Indemnifying Party or shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 11.03, (i) the Indemnifying Party shall obtain the prior written consent of the Indemnified Person is defending and controlling Party (which shall not be unreasonably withheld) before entering into any settlement of such Third Party Claim, it shall select counsel, contractors, experts if the settlement does not release the Indemnified Party from all liabilities and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating obligations with respect to the such Third Party Claim were for its own account or the settlement imposes injunctive or other equitable relief against the Indemnified Party and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The (ii) the Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized entitled to consent to a settlement of, or participate in the entry defense of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) Claim and to employ separate counsel of its choice for such settlement purpose. The fees and expenses of such separate counsel shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of be paid by the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party makes any payment on an Indemnified ClaimClaim and shall furnish or cause to be furnished such records, the Indemnifying Party shall information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claimreasonably requested in connection therewith.
(e) Without limiting For the provisions avoidance of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoingdoubt, the Parties parties acknowledge and agree that the provisions of Section 5.02(b11.03(a) through (d) above shall apply to the ASBCA Matter. With respect any suit, action or proceeding relating to the Third Party Claim described any Excluded Liability, including without limitation those items identified in Schedule A-17 (the “MSA Matter”)Item 5 of Annex E; PROVIDED, the Parties acknowledge and agree however, that the Spinco Indemnified Parties Buyer shall keep Parent reasonably apprised of all developments not be required to give notice pursuant to Section 11.03(a) to Seller with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayedExcluded Liabilities that are identified on Schedule 3.08(a).
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Procedures. (a) If any Parent Indemnified Party shall seek indemnification pursuant The parties hereto agree promptly to Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), notify the Person seeking indemnification (the “Indemnified Person”) shall give written notice to the Party from whom such indemnification is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director ---------- other party of the Indemnified Person) becomes aware making of the facts giving rise to such claim for indemnification (an “Indemnified Claim”)any demand, which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claimClaim, or the commencement of any Proceedingsuit, brought action or proceeding by a Person any third party for which indemnity may be sought under this Agreement (an "Indemnity Obligation") prior to expending or committing to expend funds for which indemnity may be sought. The party from whom indemnification is sought (the "Indemnifying Party") shall have the right, but not the obligation, to assume the defense or settlement of any Indemnity Obligation of which the party seeking indemnification (the "Indemnified Party") gives notice; provided, however, that is if the Indemnifying Party does not a Parent Company elect to assume such defense or a Spinco Company (a “Third settlement, the Indemnified Party Claim”)shall have the right, but not the obligation, to assume such defense or settlement but shall not thereby waive any such notice right to indemnity therefor by the Indemnifying Party pursuant to this Agreement, and the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered at all times have the right, at its option and expense, to participate fully therein. Each party shall have reasonable access to the Indemnified Person books, records and personnel in connection with such Third Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant to Section 7.03(a), the Indemnifying Party will be entitled to assume the defense and possession or control of such Third Party Claim subject the other party which are pertinent to the provisions of this Section 7.03(b). After written notice by the Indemnifying Party to the Indemnified Person of its election to assume the defense and control of a Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereofof any Indemnity Obligation. The Party conducting parties shall cooperate in the defense or settlement of any Indemnity Obligation, but the party electing to assume such defense or settlement shall have full authority to determine all action to be taken with respect thereto and the terms of the settlement; provided, however, that without the consent of the Indemnified Party, no settlement shall be entered into that does not include as an unconditional term thereof shall at the giving by the Person asserting such Claims of an unconditional release of the Indemnified Party from all times act as if all Damages relating personal liability with respect to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefromsuch Claim. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with Party may join the Indemnifying Party in connection with any Third Party Claimsuit, action or proceeding to which any such right of indemnity created by this Agreement would or might apply, for the purpose of enforcing any such right.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed.
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Samples: Stock Purchase Agreement (Sylvan Learning Systems Inc)
Procedures. Claims for indemnification under this Agreement shall only be asserted and resolved as follows:
(a) If Any Buyer Indemnitee or Seller Indemnitee claiming indemnification under this Agreement (an “Indemnified Party”) with respect to any Parent claim asserted against the Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified by a third party (“Third Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification (the “Indemnified PersonClaim”) in respect of any matter that is subject to indemnification under Section 9.02 shall give written (i) promptly (but no later than twenty (20) days after receiving notice to of the Third Party from whom such indemnification is sought Claim) notify the other Party (the “Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified PersonThird Party Claim and (ii) becomes aware transmit to the Indemnifying Party a written notice (a “Claim Notice”) stating the nature, basis, the amount thereof (to the extent known or estimated, which amount shall not be conclusive of the facts giving rise to final amount of such claim for indemnification (an “Indemnified Third Party Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference thereof (to the provision extent known or estimated), any other remedy sought thereunder, any relevant time constraints relating thereto, and, to the extent practicable, any other material details pertaining thereto, along with copies of this Agreement in respect the relevant documents evidencing such Third Party Claim (subject to preservation of which such Indemnified Claim arises any privilege or work-product doctrine) and demand the basis for indemnification thereforsought. The failure of an Indemnified Person Failure to provide notice notify the Indemnifying Party in accordance with this Section 7.03(a), or 9.03(a) will not relieve the Indemnifying Party of any delay in providing such notice, shall not constitute a waiver of Liability that Person’s claims it may have to indemnification pursuant to Section 7.02the Indemnified Party, except to the extent that (i1) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party is materially prejudiced by the Indemnified Party’s failure to be greater than they otherwise would have been give such notice or otherwise results in prejudice (2) the Indemnified Party fails to notify the Indemnifying Party or (iiof such Third Party Claim in accordance with this Section 9.03(a) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth Survival Expiration Date. The Parties will act in Section 7.01. If the Indemnified Claim arises from the assertion of any claimgood faith in responding to, defending against, settling or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “otherwise dealing with Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by a copy of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party ClaimClaims.
(b) In An Indemnifying Party may elect within twenty (20) days after receiving a Claim Notice to assume and thereafter conduct the event defense of receipt of notice of a any Third Party Claim from an with counsel of the Indemnifying Party’s choice, and each Indemnified Person pursuant to Section 7.03(a)Party shall cooperate in all respects with the conduct of such defense by the Indemnifying Party; provided, however, the Indemnifying Indemnified Party will be entitled shall have the right, at its own cost and expense, to assume participate in the defense and control of such Third Party Claim subject to Claim; provided, further, if the provisions Indemnified Party shall have determined in good faith in consultation with outside counsel that (i) an actual or likely conflict of this Section 7.03(b). After written notice by interest makes representation of the Indemnifying Party and the Indemnified Party by the same counsel inappropriate, or (ii) there are or likely to be available to the Indemnified Person Party one or more defenses or counterclaims that are inconsistent with one or more of its election those that may be available to assume the defense and control Indemnifying Party in respect of a such Third Party Claim, the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, then the Indemnified Person Party shall have the right to defend engage separate counsel, and the reasonable fees and expenses of such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether counsel shall be borne by the Indemnifying Party or the Indemnified Person is defending and controlling any such Third Party Claim, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereofParty. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection with any Third Party Claim.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or will not approve of the entry of any judgment arising from, or enter into any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments compromise with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express Indemnified Party’s prior written consent of Parent, such consent approval (not to be unreasonably withheld, conditioned or delayed), unless the terms of such settlement (A) provide for a complete and unconditional release of the claims that are the subject of such Third Party Claim in favor of the Indemnified Party and (B) do not impose relief other than the payment of monetary damages for which the Indemnifying Party has acknowledged responsibility under this Article IX. If the Indemnifying Party (1) does not, within twenty (20) days after such notice is given, give notice to the Indemnified Party of its election to assume the defense of the Third Party Claim or (2) elects to assume the defense but thereafter fails to promptly assume such defense, then the Indemnified Party may conduct the defense of such Third Party Claim; provided, however, that (x) the Indemnified Party will not agree to the entry of any judgment or enter into any settlement or compromise with respect to such Third Party Claim that the Indemnifying Party has acknowledged in writing is a Damage subject to this Article IX without the prior written consent of the Indemnifying Party (not to be unreasonably withheld, conditioned or delayed) and (y) notwithstanding anything herein to the contrary, if at any time the Indemnifying Party acknowledges in writing that such Third Party Claim results in Damages that are fully indemnifiable without limitation under this Article IX, the Indemnifying Party may thereafter assume the defense of such Third Party Claim. Notwithstanding the foregoing, Article VI and not this Section 9.03(b) shall govern the conduct of any Tax Claim.
(c) If any Indemnified Party becomes aware of any circumstances that may give rise to a claim for indemnification pursuant to Section 9.02 for any matter not involving a Third Party Claim, then such Indemnified Party shall promptly (i) notify the Indemnifying Party and (ii) deliver to the Indemnifying Party a written notice describing in reasonable detail the nature of the claim, describing in reasonable detail the basis of the Indemnified Party’s request for indemnification under this Agreement and including the Indemnified Party’s best estimate of the amount of Damages that may arise from such claim. Failure to notify the Indemnifying Party in accordance with this Section 9.03(c) will not relieve the Indemnifying Party of any Liability that it may have to the Indemnified Party, except to the extent (A) the Indemnifying Party is materially prejudiced by the Indemnified Party’s failure to give such notice or (B) the Indemnified Party fails to notify the Indemnifying Party of such claim in accordance with this Section 9.03(c) prior to the applicable Survival Expiration Date.
(d) At the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its Representatives all reasonable access to the books, records, employees and properties of such Indemnified Party to the extent reasonably related to the matters to which the applicable indemnification claim relates. All such access shall be granted during normal business hours and shall be granted under conditions which shall not unreasonably interfere with the business and operations of such Indemnified Party and in a manner to preserve any privilege or work-product doctrine and comply with confidentiality obligations to third parties (provided that the Indemnified Party shall, and shall cause its Affiliates and direct its and their Representatives to, use their commercially reasonable efforts to provide such access and documents in a manner that preserves such privilege or doctrine and complies with such confidentiality obligations, including making reasonable and appropriate substitute access and disclosure arrangements under circumstances in which such restrictions apply).
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Procedures. (a) If any Parent Indemnified Party shall seek Any party(ies) entitled to indemnification pursuant to under Section 7.02(a), or if any Spinco Indemnified Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification 11.02 (the “Indemnified PersonParty”) shall agrees to give written prompt notice to the Party party from whom such the Indemnified Party is entitled to seek indemnification is sought (the “Indemnifying Party”) promptly (and in any event within 10 days) after the Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Claim”), which notice shall specify in reasonable detail the factual basis of the Indemnified Claim, state the amount of Damages (or if not known, a good faith estimate of the amount of Damages) and the method of computation thereof, contain a reference to the provision of this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceedingsuit, brought action or proceeding in respect of which the Indemnified Party is entitled to seek indemnification under Section 11.02 (it being understood that a party’s entitlement to indemnification shall be determined without regard to the application of (i) the Seller General Basket, Seller Environmental Basket and Buyer Basket (collectively, the “Baskets”) and (ii) the Seller Cap and Buyer Cap (collectively, the “Caps”)) and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) Seller shall control and appoint lead counsel for the defense of any claim asserted by a Person that is not a Parent Company or a Spinco Company any third party (a “Third Party Claim”)) that is an Excluded Liability. In addition, any such notice to the Indemnifying Party shall be accompanied by a copy entitled to control and appoint lead counsel for the defense of any papers theretofore served on or delivered to the Indemnified Person in connection with such Third Party Claim.
(b) In the event of receipt of notice of a Third Party Claim from an Indemnified Person pursuant or any Environmental Matter if (i) it is reasonably expected that indemnification payments to Section 7.03(a), be made by the Indemnifying Party will be entitled to assume the defense and control in respect of such Third Party Claim subject to or Environmental Matter in accordance with Section 11.02 (taking into account the provisions of this Section 7.03(b). After written notice Baskets and the Caps) will be greater than the harm suffered by the Indemnifying Indemnified Party to the Indemnified Person as a result of its election to assume the defense and control of a such Third Party Claim, including any injunctive, equitable or other non-monetary relief sought by such third party, (ii) the Indemnifying Party shall not be liable acknowledge in writing its obligation to indemnify the Indemnified Party for any Damages relating to such Indemnified Person for any legal fees Third Party Claim or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything Environmental Matter (subject to the limitations on indemnification set forth in this Section 7.03 to Article 11, including the contrary, until such time as Baskets and the Caps) and (iii) the Indemnifying Party assumes shall notify the Indemnified Party that it has elected to assume such defense and control promptly but in any event within 30 days after receipt of a the notice with respect to such Third Party Claim as provided referred to in this Section 7.0311.02(a) or, with respect to Environmental Matters, in a timely manner given the facts and circumstances and changes thereto or development thereof over time (it being understood that the Indemnified Person Party shall have the right be entitled to take such actions as may be required to defend such Third Party Claim, subject including if necessary seeking extensions of time to respond to pleadings and the like, prior to the limitations set forth in this Section 7.03, in receipt of such manner as it may deem appropriateacknowledgement within the 30-day period referred to above). Without regard The Indemnified Party shall be entitled to whether control and appoint lead counsel for the defense of any Third Party Claim if the Indemnifying Party is not entitled to, or the Indemnified Person is defending and controlling any such Third Party Claimfails to, it shall select counsel, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense or settlement thereof, and shall diligently and promptly pursue the resolution thereof. The Party conducting elect to assume the defense thereof shall at all times act as if all Damages relating of such claim pursuant to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shallforegoing sentence, and shall cause each of its Affiliates and Representatives to, cooperate fully with or thereafter if the Indemnifying Party in connection fails or ceases to prosecute such claim with any Third Party Claimreasonable diligence.
(c) The Indemnifying Party shall be authorized to consent to a settlement of, or party controlling the entry of any judgment arising from, any Third Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect defense of any Third Party Claim shall be consented to by any Indemnified Person without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person Environmental Matter in accordance with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 11.03 (the “ASBCA MatterControlling Party”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) (i) shall apply to pay all the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 costs of such defense (the “MSA Matter”including attorneys’ fees), provided that if the Parties acknowledge and agree that Indemnified Party is the Spinco Indemnified Parties Controlling Party, then such costs shall keep Parent reasonably apprised be considered Damages arising out of all developments with respect to such Third Party Claim for purposes of Section 11.02, and all Proceedings relating thereto, including (ii) shall obtain the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express prior written consent of Parentthe other party (the “Non-Controlling Party”) before entering into any settlement of such Third Party Claim or Environmental Matter, such consent not to be unreasonably withheldwithheld (A) if the settlement does not impose injunctive or other equitable relief against the Non-Controlling Party or (B) with respect to Environmental Matters, conditioned if the settlement is consistent with the terms of Section 11.03(g). The Non-Controlling Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Non-Controlling Party, unless in the reasonable judgment of counsel to the Non-Controlling Party there is a conflict of interest between the Controlling Party and the Non-Controlling Party, in which case such fees and expenses shall be paid by the Controlling Party (provided that if the Indemnified Party is the Controlling Party, then such fees and expenses shall be considered Damages arising out of such Third Party Claim for purposes of Section 11.02). In any Third Party Claim where an Indemnified Party is the Non-Controlling Party and which involves any material customer or delayedsupplier of the Indemnified Party or its Affiliates, such participation shall in any event include the right of the Non-Controlling Party to engage in direct discussions with the other parties to such Third Party Claim, including discussions concerning the claim and the potential resolution thereof; provided that (1) such participation right shall not alter the rights of the Controlling Party to control and direct the defense of such Third Party Claim, including the right to reject or accept any resolution proposed by the Non-Controlling Party in such Controlling Party’s sole discretion, and (2) the Non-Controlling Party shall disclose to such other parties that in conducting any such discussions, the Non-Controlling Party is acting on its own behalf and not as a Representative of the Controlling Party and the Non-Controlling Party is not authorized to agree to any settlement with respect to such Third Party Claim. With respect to any Third Party Claim relating to the Specified Matters, the Controlling Party shall retain the legal counsel identified in Section 11.03(c) of the Disclosure Schedule with respect thereto and shall not replace or discharge such counsel absent good cause.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim 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 reasonably requested in connection therewith. In furtherance and not in limitation of the foregoing, in connection with the defense of any Infringement Claim, Buyer shall, to the extent requested by Seller, assert (or, in Buyer’s sole discretion, allow Seller to assert on its behalf) against the Person making such Infringement Claim any claims for infringement or misappropriation of Business Intellectual Property Rights for which there is a reasonable basis in law and fact. A Controlling Party shall, to the extent requested by the Non-Controlling Party, (i) keep the Non-Controlling Party reasonably informed relating to the progress of any significant matter (including providing the Non-Controlling Party with periodic summaries of the status of such Third Party Claim and the amounts spent with respect thereto and copies of all material plans, reports and external correspondence and notifying the Non-Controlling Party of, and giving the Non-Controlling Party the opportunity to attend, scheduled voice or in-person conferences with regulators or other third parties) and (ii) provide the Non-Controlling Party with a reasonable period of time, given the specific circumstances, to permit such party to comment on any material proposed actions, and to consider in good faith any such comments.
(e) Each Indemnified Party must mitigate as required by Applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use its reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 11.02.
(g) In addition to the provisions set forth in Section 11.03(a), 11.03(b), 11.03(c), 11.03(e) and 11.03(f) above, with respect to any matter for which Buyer or its Affiliates seek indemnification relating to a Warranty Breach of Section 3.20, an Excluded Environmental Liability, an Identified Environmental Liability or any other environmental matter otherwise subject to indemnification under the terms of this Agreement (“Environmental Matters”):
(i) Except as set forth in Section 11.03(b), Buyer will retain the defense, control and resolution of any Environmental Matters, including disclosure, investigation, negotiation, performance and settlement of such matters. With respect to any Environmental Matters, the Controlling Party shall, to the extent requested by the Non-Controlling Party, (1) keep the other party reasonably informed relating to the progress of any significant matter (including providing the Non-Controlling Party with copies of all material plans, reports and external correspondence and notifying the other party of, and giving the Non-Controlling Party the opportunity to attend, scheduled voice or in-person conferences with regulators or other third parties), (2) provide the other party with a reasonable period of time, given the specific circumstances, to permit such party to comment on any material proposed actions, and to consider in good faith any such comments and (3) not unreasonably interfere with the ordinary course operation of the business at any Real Property or with the continuing use of the Real Property in the manner being used as of the Closing Date;
(ii) Buyer agrees to, and shall cause its Affiliates to, cooperate with Seller in providing all necessary and reasonably requested access to properties, facilities, employees and records and timely providing Seller with copies of all communications relating to such matter received from any Governmental Authority or third party;
(iii) Each party agrees to cooperate, and to cause their respective Affiliates to cooperate, in the defense or prosecution of any Environmental Matter and shall provide to the other party with copies of any and all material environmental audits, studies, action plans, tests and communications with any Governmental Agency or third party relating to investigatory, remedial or other activities with respect to any property which may be subject to a claim for indemnification for any Environmental Matters;
(iv) Seller’s obligation to indemnify Buyer or any of its Affiliates shall be limited to those Damages which must be incurred, based upon (1) the use of a reasonable and cost-effective method available under the circumstances and (2) the industrial or commercial use of the property as of the Closing Date, to meet, in a reasonably cost-effective manner, the requirements of any applicable Environmental Law or to meet the demands of any applicable Governmental Authority or as required by any judicial or administrative resolution, order or settlement agreement of a Third Party Claim otherwise complying with the terms of this Agreement. To the extent necessary to achieve the purposes set forth in this Section, Buyer and its Affiliates agree that engineering or institutional controls and a deed or other restriction are each a reasonable cost-effective method, so long as such control or restriction does not materially limit the industrial or commercial activities being performed on the applicable property as of the Closing Date.
(v) Seller shall have no liability under this Agreement for any Damages relating to Environmental Matters to the extent arising out of any sampling of the soil or groundwater or any disclosure, report, or communication to any Governmental Authority or third party by Buyer or any of its Affiliates (or by a Third Party Buyer of any Real Property as described in clause (B) below), or out of the initiation or encouragement by Buyer or any of its Affiliates of any action by any Governmental Authority or third party unless:
(A) Buyer or any of its Affiliates reasonably believes it must investigate, take action, initiate or encourage any such action due to (1) the requirements of any applicable law, including any Environmental Law, (2) a need to respond to any Third Party Claim against Buyer or its Affiliates, (3) the discovery of a condition first identified as a result of construction activities which would have been undertaken in the ordinary course of operating the site in the manner in which it is operating as of the Closing Date, in the absence of an indemnity or (4) the discovery of a condition in the ordinary course of operating the site in the manner in which it is operating as of the Closing Date which condition, if unaddressed, would reasonably be expected to result in a material Third Party Claim or imminent and substantial risk to human health;
(B) Buyer or any of its Affiliates reasonably believes that it (or any Third Party Buyer) must investigate, take action, initiate or encourage any such action to meet the demands of a reasonable third party buyer or its financing parties (collectively, “Third Party Buyers”) in connection with the sale of the applicable Real Property to such third party or any other transaction involving the direct or indirect transfer of, or related encumbrance on, the applicable Real Property; provided that the liability of Seller under this Agreement for any Damages for any Environmental Matters triggered by such Third Party Buyer requirement shall be limited to 50% of any Damages incurred by Buyer or its Affiliates, to be determined after the application of the Baskets and Caps; and
(C) Buyer or any of its Affiliates investigates, takes action, initiates or encourages any such action other than as described above, in which case the liability of Seller under this Agreement for any Damages relating to Environmental Matters triggered by such investigation, action, initiation or encouragement shall be limited to 20% of any Damages incurred by Buyer or its Affiliates, to be determined after the application of the Baskets and Caps.
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Samples: Asset and Stock Purchase Agreement (Sensata Technologies Holland, B.V.)
Procedures. Claims for indemnification under this Agreement (including claims relating to Taxes) shall be asserted and resolved as follows:
(a) If Any Parent Indemnitee or Seller Indemnitee seeking indemnification under this Agreement (an “Indemnified Party”) with respect to any Parent claim asserted against the Indemnified Party shall seek indemnification pursuant to Section 7.02(a), or if any Spinco Indemnified by a third party (“Third Party shall seek indemnification pursuant to Section 7.02(b), the Person seeking indemnification (the “Indemnified PersonClaim”) in respect of any matter that is subject to indemnification under Section 8.2 shall give written notice to promptly notify in writing (a “Claim Notice”) the other Party from whom such indemnification is sought (the “Indemnifying Party”) promptly of the Third Party Claim (and in any event within 10 days) 30 Business Days after the receipt by such Indemnified Person (or, if the Indemnified Person is a corporation, any officer or director Party of written notice of the Indemnified Person) becomes aware of the facts giving rise to such claim for indemnification (an “Indemnified Third Party Claim”), which notice Claim Notice shall specify describe in reasonable detail the factual nature of the Third Party Claim, including the basis of the Indemnified Claim, state the amount of Damages (or if not known, Party’s request for indemnification under this Agreement and a good faith reasonable estimate of any Damages suffered or expected to be suffered with respect thereto (if available); provided, however, that failure to promptly or completely provide such Claim Notice shall not relieve the amount Indemnifying Party of Damages) and the method of computation thereof, contain a reference to the provision of its indemnification obligations provided under this Agreement in respect of which such Indemnified Claim arises and demand indemnification therefor. The failure of an Indemnified Person to provide notice in accordance with this Section 7.03(a), or any delay in providing such notice, shall not constitute a waiver of that Person’s claims to indemnification pursuant to Section 7.02, except to the extent that (i) any such failure or delay in giving notice causes the amounts paid or to be paid by the Indemnifying Party to be greater than they otherwise would have been or otherwise results in prejudice to the Indemnifying Party or (ii) such notice is not delivered to the Indemnifying Party prior to the expiration of the applicable survival period set forth in Section 7.01. If the Indemnified Claim arises from the assertion of any claim, or the commencement of any Proceeding, brought by a Person that is not a Parent Company or a Spinco Company (a “Third Party Claim”), any such notice to the Indemnifying Party shall be accompanied by have been prejudiced as a result of such failure or delay. The Indemnified Party shall promptly provide the Indemnifying Party with a copy of any all papers theretofore served on or delivered with respect to such claim (if any) promptly upon receipt thereof by the Indemnified Person in connection with such Third Party ClaimParty.
(b) In The Indemnifying Party shall have the event right to participate in the defense of receipt of notice of a any Third Party Claim from an Indemnified Person pursuant at any time and, subject to the limitations contained in this Section 7.03(a8.3(b), assume and control the defense thereof. The Indemnifying Party will promptly notify the Indemnified Party (and in any event within 20 Business Days after having received any Claim Notice) with respect to whether or not it is exercising its right to assume and control the defense of any such Third Party Claim; provided that the Indemnifying Party will be entitled may only exercise its right to assume and control the defense and control of such Third claim if it unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnified Party Claim subject with respect to the provisions of such claim under this Section 7.03(b)Article VIII. After written notice by If the Indemnifying Party to notifies the Indemnified Person of its election Party that the Indemnifying Party elects to assume and control the defense and control of a the Third Party Claim, then the Indemnifying Party shall not be liable to such Indemnified Person for any legal fees or expenses subsequently incurred by such Indemnified Person in connection therewith. Notwithstanding anything in this Section 7.03 to the contrary, until such time as the Indemnifying Party assumes the defense and control of a Third Party Claim as provided in this Section 7.03, the Indemnified Person shall have the right to defend such Third Party Claim, subject to the limitations set forth in this Section 7.03, in such manner as it may deem appropriate. Without regard to whether Claim with counsel selected by the Indemnifying Party or and not reasonably objected to by the Indemnified Person is defending and controlling any such Third Party ClaimParty, it shall select counselin all appropriate proceedings, contractors, experts and consultants of recognized standing and competence, shall take reasonable steps necessary in the investigation, defense to a final conclusion or settlement thereof, and shall diligently and promptly pursue at the resolution thereof. The Party conducting the defense thereof shall at all times act as if all Damages relating to the Third Party Claim were for its own account and shall act in good faith and with reasonable prudence to minimize Damages therefrom. The Indemnified Person shall, and shall cause each discretion of its Affiliates and Representatives to, cooperate fully with the Indemnifying Party in connection accordance with any Third Party Claim.
(c) this Section 8.3(b). The Indemnifying Party shall be authorized to consent to a have full control of such defense and proceedings, including any compromise or settlement ofthereof; provided, or however, that the entry of any judgment arising from, any Third Indemnifying Party Claims, and the Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, such Third Party Claims, if (A) such settlement shall not encumber enter into any of the assets of any Indemnified Person or contain any restriction or condition that would apply to such Indemnified Person or to the conduct of that Person’s business, (B) such settlement or entry of judgment does not contain or involve an admission or statement providing for or acknowledging any liability or criminal wrongdoing on behalf of the Indemnified Person or any of its Affiliates, and (C) such settlement contains as a condition thereto, a complete release of the Indemnified Person. No settlement or entry of judgment in respect of any Third Party Claim shall be consented to by any Indemnified Person agreement without the express written consent of the Indemnifying Party.
(d) If an Indemnifying Party makes any payment on an Indemnified Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Person to any insurance benefits or other claims or benefits of the Indemnified Person with respect to such claim.
(e) Without limiting the provisions of this Section 7.03, it is acknowledged and agreed that Parent shall defend and control the Third Party Claims described in Item 5 of Schedule A-16 (the “ASBCA Matter”). In furtherance of the foregoing, the Parties acknowledge and agree that the provisions of Section 5.02(b) shall apply to the ASBCA Matter. With respect to the Third Party Claim described in Schedule A-17 (the “MSA Matter”), the Parties acknowledge and agree that the Spinco Indemnified Parties shall keep Parent reasonably apprised of all developments with respect to such Third Party Claim and all Proceedings relating thereto, including the defense of claims in respect thereof by Mission Support Alliance, LLC, shall consult with Parent regarding any material developments and decisions in the defense of the MSA Matter and shall consider in good faith the views of Parent in respect of the MSA Matter. Neither Spinco nor any Spinco Indemnified Party (which consent shall consent or agree to any settlement or entry of judgment with respect to the MSA Matter (including through any approval of or consent to any action of the MSA joint venture) without the express written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, such consent shall not be required if (i) the settlement agreement contains a complete and unconditional general release by the third party asserting the Third Party Claim to all Indemnified Parties affected by the Third Party Claim and (ii) the settlement agreement does not contain any admission by, or sanction or restriction upon the conduct or operation of any business conducted by, the Indemnified Party or its Affiliates (including any proceeding that seeks an injunction or other equitable relief against the Indemnified Party or its Affiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 8.3(b), and the Indemnified Party shall bear its own costs and expenses with respect to such participation unless the employment of separate legal counsel has been specifically authorized in writing by the Indemnifying Party. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if (A) (1) the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its counsel, cannot be separated from any claim for money damages, and (2) in the event the Third Party Claim were to be decided adversely to the Indemnified Party, such a decision could reasonably be expected to materially impair the conduct of the business conducted by the Indemnified Party; provided, that if such equitable relief or other relief portion or the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages, (B) the Third Party Claim seeks money damages, and in the event the Third Party Claim were to be decided adversely to the Indemnified Party, such a decision could reasonably be expected to result in Damages for which the Indemnified Party would be responsible for a greater portion of the Damages related to such Third Party Claim than the Indemnifying Party; or (C) the Indemnified Party shall have been advised by counsel that the assumption of such defense by the Indemnifying Party would be inappropriate due to a material conflict of interest. Notwithstanding anything set forth in this Section 8.3(b) to the contrary, if the Indemnifying Party has assumed the defense and the Indemnifying Party fails to actively and diligently pursue the defense of such Third Party Claim, then the Indemnified Party shall be entitled to retain or otherwise reassume the defense of such Third Party Claims (and, for the avoidance of doubt, the provisions of Section 8.3(c) shall apply).
(c) If the Indemnifying Party does not notify the Indemnified Party that the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 8.3(b) within 15 Business Days after receipt of any Claim Notice, then the Indemnified Party shall defend itself against the applicable Third Party Claim, and be reimbursed for its reasonable cost and expense (but only if the Indemnified Party is actually entitled to indemnification hereunder) in regard to the Third Party Claim with counsel selected by the Indemnified Party, in all appropriate proceedings and in good faith, which proceedings shall be prosecuted diligently by the Indemnified Party. In such circumstances, the Indemnified Party shall defend any such Third Party Claim in good faith and have full control of such defense and proceedings; provided, however, that the Indemnified Party may not enter into any compromise or settlement of such Third Party Claim if indemnification is to be sought hereunder, without the Indemnifying Party’s consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 8.3(c), and the Indemnifying Party shall bear its own costs and expenses with respect to such participation; provided, however, the Indemnifying Party shall be entitled (to the extent permitted under Section 8.3(b)) to assume the defense of such Third Party Claim in accordance with Section 8.3(b). For the avoidance of doubt, if the Indemnifying Party does notify the Indemnified Party that the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 8.3(b) and this Section 8.3(c), the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof (but only if the Indemnified Party is actually entitled to indemnification hereunder).
(d) If reasonably requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to reasonably cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, including providing reasonable access to documents, records and information. In addition, the Indemnified Party will make its personnel reasonably available during normal business hours at no cost to the Indemnifying Party for conferences, discovery, proceedings, hearings, trials or appeals as may be reasonably requested by the Indemnifying Party. If the Indemnifying Party has assumed the defense of a Third Party Claim, the Indemnified Party also agrees to reasonably cooperate with the Indemnifying Party and its counsel in the making of any related counterclaim against the Person asserting the Third Party Claim or any cross complaint against any Person and executing powers of attorney to the extent necessary unless doing so would materially impair the conduct of the business conducted by the Indemnified Party.
(e) A claim for indemnification for any matter not involving a Third Party Claim shall be asserted by notice to the Indemnifying Party as promptly as practicable, which notice shall describe in reasonable detail the nature of the claim and the basis of the Indemnified Party’s request for indemnification under this Agreement; provided, however, that failure to promptly or completely provide such notice shall not relieve the Indemnifying Party of its indemnification obligations provided under this Agreement except to the extent the Indemnifying Party shall have been materially prejudiced as a result of such failure or delay.
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