Provisions Regarding Indemnification. (a) The indemnified party (or parties) shall promptly notify the indemnifying party (or parties) of any third-party claim, demand, action or proceeding for which indemnification will or may be sought under Sections 10.1 or 10.2 (a “Third Party Claim”), but in no event later than ten (10) Business Days after receiving notice of such Third Party Claim; provided, however, that the failure to so notify the indemnifying party will not relieve the indemnifying party from liability hereunder in respect of such claim except to the extent the indemnifying party is prejudiced as a result of such failure, including where failure results in losses to the indemnifying party or the forfeiture of substantive rights or defenses that would otherwise be available in the defense of such claim. Such notice shall specify facts reasonably known to the indemnified party (or parties) giving rise to such indemnity rights. The indemnifying party will have the right, at its expense, to assume the defense thereof using counsel reasonably acceptable to the indemnified party. If the indemnifying party elects not to assume the defense or fails to notify the indemnified party, within ten (10) Business Days after delivery of the indemnified party’s notice of such Third Party Claim (which period shall toll during any period in which the indemnified party is in breach of Section 6.17 in respect of such claim), that it will assume the defense, then the indemnified party may employ counsel reasonably satisfactory to the indemnifying party to represent or defend it against any such Third Party Claim and the indemnifying party will pay the reasonable fees and disbursements of such counsel; provided, however, that the indemnifying party shall not, in connection with any legal proceeding or any separate but substantially similar legal proceedings arising out of the same general allegations, be liable for the fees and expenses of more than one separate firm of attorneys at any time for all indemnified persons, except to the extent that local counsel, in addition to its regular counsel, is required in order to effectively defend against such legal proceeding. If the indemnifying party does assume the defense of such Third Party Claim, the indemnifying party shall have no obligation in respect of the indemnified party’s expenses; provided, that the indemnified party shall have the right to participate in, at its own expense, but not control, the defense of any such Third Party Claim. In connection with any Third Party Claim, the Parties shall cooperate with each other in good faith, in such manner to preserve in full (to the extent possible) the confidentiality of all business records and the attorney-client, work-product and any other potentially applicable privileges and to render each other assistance as they may reasonably require. No Third Party Claim shall be settled (i) without the prior written consent of the indemnifying party and (ii) without the prior written consent of the indemnified party unless such settlement provides for no relief other than the payment of monetary damages for which the relevant indemnified parties will be indemnified in full; provided, however, that if a firm, written offer is made to settle any Third Party Claim and the indemnifying party proposes to accept such settlement and the indemnified party refuses to consent to such settlement, then: (i) the indemnifying party shall be excused from, and the indemnified party shall be solely responsible for, all further defense of such Third Party Claim; and (ii) the maximum liability of the indemnifying party relating to such Third Party Claim shall be the amount of the proposed settlement if the amount thereafter recovered from the indemnified party on such Third Party Claim is greater than the amount of the proposed settlement.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Rollins Inc)
Provisions Regarding Indemnification. (a) The indemnified party (or parties) shall promptly notify the indemnifying party (or parties) of any third-party claim, demand, action or proceeding for which indemnification will or may be sought under Sections 10.1 or 10.2 (a “Third Party Claim”), but in no event later than ten (10) Business Days after receiving notice of such Third Party Claim; provided, however, that the failure to so notify the indemnifying party will not relieve the indemnifying party from liability hereunder in respect of such claim except to the extent the indemnifying party is prejudiced as a result of such failure, including where failure results in losses to the indemnifying party or the forfeiture of substantive rights or defenses that would otherwise be available in the defense of such claim. Such notice shall specify facts reasonably known to the indemnified party (or parties) giving rise to such indemnity rights. The indemnifying party will have the right, at its expense, to assume the defense thereof using counsel reasonably acceptable to the indemnified party. If the indemnifying party elects not to assume the defense or fails to notify the indemnified party, within ten (10) Business Days after delivery of the indemnified party’s notice of such Third Party Claim (which period shall toll during any period in which the indemnified party is in breach of Section 6.17 in respect of such claim), that it will assume the defense, then the indemnified party may employ counsel reasonably satisfactory to the indemnifying party to represent or defend it against any such Third Party Claim and the indemnifying party will pay the reasonable fees and disbursements of such counsel; provided, however, that the indemnifying party shall not, in connection with any legal proceeding or any separate but substantially similar legal proceedings arising out of the same general allegations, be liable for the fees and expenses of more than one separate firm of attorneys at any time for all indemnified persons, except to the extent that local counsel, in addition to its regular counsel, is required in order to effectively defend against such legal proceeding. If the indemnifying party does assume the defense of such Third Party Claim, the indemnifying party shall have no obligation in respect of the indemnified party’s expenses; provided, that the indemnified party shall have the right to participate in, at its own expense, but not control, the defense of any such Third Party Claim. In connection with any Third Party Claim, the Parties shall cooperate with each other in good faith, in such manner to preserve in full (to the extent possible) the confidentiality of all business records and the attorney-client, work-product and any other potentially applicable privileges and to render each other assistance as they may reasonably require. No Third Party Claim shall be settled (i) without the prior written consent of the indemnifying party and (ii) without the prior written consent of the indemnified party unless such settlement provides for no relief other than the payment of monetary damages for which the relevant indemnified parties will be indemnified in full; provided, however, that if a firm, written offer is made to settle any Third Party Claim and the indemnifying party proposes to accept such settlement and the indemnified party refuses to consent to such settlement, then: (i) the indemnifying party shall be excused from, and the indemnified party shall be solely responsible for, all further defense of such Third Party Claim; and (ii) the maximum liability of the indemnifying party relating to such Third Party Claim shall be the amount of the proposed settlement if the amount thereafter recovered from the indemnified party on such Third Party Claim is greater than the amount of the proposed settlement.. 55 (b) To the extent a dispute exists between the indemnified party (or parties) and the applicable indemnifying party (or parties), with respect to a claim for which indemnification will or may be sought under Sections 10.1 or 10.2 (but excluding Third Party Claims) (a “Direct Claim”), the indemnified party shall give written notice (“Direct Claim Notice”) to the indemnifying party. Such notice shall specify the facts reasonably known to the indemnified party (or parties) giving rise to such indemnity rights. If the indemnifying party, within thirty (30) days after the delivery of the Direct Claim Notice by such indemnified party, shall not give written notice to such indemnified party announcing such indemnifying party’s intent to contest such assertion by the indemnified party, such assertion shall be deemed accepted and the amount of such claim shall be deemed a valid claim and the indemnifying party shall promptly pay (except as provided in Section 10.5, and subject to the limitations of Section 10.6) the amount of such claim to the indemnified party. If the indemnifying party, within thirty (30) days after the delivery of the Direct Claim Notice by such indemnified party, shall give notice that it contests such assertion by the indemnified party, such dispute shall be resolved in accordance with this Agreement. 10.4
Appears in 1 contract
Samples: Asset Purchase Agreement
Provisions Regarding Indemnification. In the event any action, suit ------------------------------------ or proceeding is brought, or any claim, demand or assessment is asserted, against a party entitled to indemnification under Section 10.1 hereof, by reason thereof (athe "indemnified party"), with respect to which an indemnifying party (the "indemnifying party") The may have liability under the indemnity agreements contained in Section 10.1 hereof, no indemnifying party shall be liable therefor unless the indemnified party complies with the following provisions, it being understood that the indemnifying party and the indemnified party shall have the following rights and obligations in any such event: (or partiesi) the indemnified party shall promptly notify the indemnifying party (or parties) of any third-party such action, suit, proceeding, claim, demand, action demand or proceeding for which indemnification will or may be sought under Sections 10.1 or 10.2 assessment (each a “Third Party "Claim”), but in no event later than ten (10") Business Days after receiving notice within 20 days of such Third Party Claim; provided, however, that the failure to so notify acquiring knowledge thereof and shall furnish the indemnifying party will not relieve with all information and documents relating thereto within 20 days after the indemnified party's receipt thereof (or such earlier practicable date as shall be appropriate to enable the indemnifying party from liability hereunder in respect of such claim except to timely respond thereto and defend the extent same); (ii) the indemnifying party is prejudiced as a result of such failure, including where failure results in losses shall be entitled to defend the indemnifying party or the forfeiture of substantive rights or defenses that would otherwise be available in the defense of such claim. Such notice shall specify facts reasonably known to the indemnified party (or parties) giving rise to such indemnity rights. The indemnifying party will have the right, at its expense, to assume the defense thereof using Claim with counsel selected by it and reasonably acceptable to the indemnified party. If the indemnifying party elects not to assume the defense or fails to notify the indemnified party, within ten ; (10iii) Business Days after delivery of the indemnified party’s notice of such Third Party Claim (which period shall toll during any period in which the indemnified party is in breach of Section 6.17 in respect of such claim), that it will assume the defense, then the indemnified party may employ counsel reasonably satisfactory to the indemnifying party to represent or defend it against any such Third Party Claim and the indemnifying party will pay the reasonable fees and disbursements of such counsel; provided, however, that the indemnifying party shall not, in connection with any legal proceeding or any separate but substantially similar legal proceedings arising out of the same general allegations, be liable for the fees and expenses of more than one separate firm of attorneys at any time for all indemnified persons, except to the extent that local counsel, in addition to its regular counsel, is required in order to effectively defend against such legal proceeding. If the indemnifying party does assume the defense of such Third Party Claim, the indemnifying party shall have no obligation in respect of the indemnified party’s expenses; provided, that the indemnified party shall have the right to participate in, at employ its own expensecounsel in any such case, but the fees and expenses of such counsel shall be at the indemnified party's own expense; (iv) the indemnified party shall be kept fully informed of such Claim whether or not control, it is so represented; (v) the indemnified party shall make available to the indemnifying party and its attorneys and accountants all books and records of the indemnified party relating to such Claim and shall render such assistance as is reasonably required in order to ensure the proper and adequate defense of any such Third Party Claim. In connection with ; and (vi) in the event the indemnifying party shall be actively defending any Third Party Claim, the Parties indemnified party shall cooperate with each other in good faith, in not make any settlement of such manner to preserve in full (to the extent possible) the confidentiality of all business records and the attorney-client, work-product and any other potentially applicable privileges and to render each other assistance as they may reasonably require. No Third Party Claim shall be settled (i) without the prior written consent of the indemnifying party and (ii) without the prior written consent of the indemnified party unless such shall accept any settlement provides for no relief other than the payment of monetary damages for which the relevant indemnified parties will be indemnified in full; provided, however, that if a firm, written offer is made to settle any Third Party Claim and thereof recommended by the indemnifying party proposes to accept such settlement and so long as the indemnified party refuses to consent to such settlement, then: (i) amount thereof is paid or discharged in full by the indemnifying party shall be excused from, and the indemnified party shall be solely responsible for, all further defense of such Third Party Claim; and (ii) the maximum liability of the indemnifying party relating to such Third Party Claim shall be the amount of the proposed settlement if the amount thereafter recovered from the indemnified party on such Third Party Claim is greater than the amount of the proposed settlementparty.
Appears in 1 contract
Provisions Regarding Indemnification. (a) The indemnified If, within the applicable survival period, any third party shall notify any party (or partiesthe “Indemnified Party”) with respect to any third party claim which may give rise to a claim for indemnification against any other party (the “Indemnifying Party”) under this Article 11, then the Indemnified Party shall promptly notify the indemnifying party (or parties) of any third-party claim, demand, action or proceeding for which indemnification will or may be sought under Sections 10.1 or 10.2 (a “Third Indemnifying Party Claim”), but in no event later than ten (10) Business Days after receiving notice of such Third Party Claimthereof promptly; provided, however, that no delay on the failure to so notify part of the indemnifying party will not Indemnified Party in notifying the Indemnified Party shall relieve the indemnifying party Indemnifying Party from any liability or obligation hereunder in respect of such claim except unless (and then solely to the extent extent) the indemnifying party Indemnifying Party thereby is prejudiced as a result prejudiced. In the event any Indemnifying Party notifies the Indemnified Party within 20 days after the Indemnified Party has given notice of such failure, including where failure results in losses to the indemnifying party or matter that the forfeiture of substantive rights or defenses that would otherwise be available in Indemnifying Party is assuming the defense thereof, (i) the Indemnifying Party will defend the Indemnified Party against the matter with counsel of such claim. Such notice shall specify facts reasonably known to the indemnified party (or parties) giving rise to such indemnity rights. The indemnifying party will have the right, at its expense, to assume the defense thereof using counsel reasonably acceptable to the indemnified party. If the indemnifying party elects not to assume the defense or fails to notify the indemnified party, within ten (10) Business Days after delivery of the indemnified party’s notice of such Third Party Claim (which period shall toll during any period in which the indemnified party is in breach of Section 6.17 in respect of such claim), that it will assume the defense, then the indemnified party may employ counsel choice reasonably satisfactory to the indemnifying party to represent or defend it against any such Third Indemnified Party, (ii) the Indemnified Party Claim may retain separate co-counsel at its sole cost and the indemnifying party will pay the reasonable fees and disbursements of such counsel; provided, however, expense (except that the indemnifying party shall not, in connection with any legal proceeding or any separate but substantially similar legal proceedings arising out of the same general allegations, Indemnifying Party will be liable responsible for the fees and expenses of more than one the separate firm of attorneys at any time for all indemnified persons, except co-counsel to the extent that local counsel, in addition to its regular counsel, is required in order to effectively defend against such legal proceeding. If the indemnifying party does assume the defense of such Third Indemnified Party Claim, the indemnifying party shall have no obligation in respect of the indemnified party’s expenses; provided, concludes reasonably that the indemnified counsel the Indemnifying party shall have has selected has a conflict of interest), (iii) the right Indemnified Party will not consent to participate in, at its own expense, but not control, the defense of any such Third Party Claim. In connection settlement with any Third Party Claim, the Parties shall cooperate with each other in good faith, in such manner to preserve in full (respect to the extent possible) the confidentiality of all business records and the attorney-client, work-product and any other potentially applicable privileges and to render each other assistance as they may reasonably require. No Third Party Claim shall be settled (i) matter without the prior written consent of the indemnifying party Indemnifying Party (not to be withheld unreasonably), and (iiiv) without the prior written consent of the indemnified party unless such settlement provides for no relief other than Indemnified Party, the payment of monetary damages for which the relevant indemnified parties Indemnifying Party will be indemnified in full; provided, however, that if a firm, written offer is made to settle any Third Party Claim and the indemnifying party proposes to accept such settlement and the indemnified party refuses to not consent to the entry of any judgment with respect to the matter, or enter into any settlement unless the Indemnifying Party pays all amounts in full and such settlement, then: (i) judgment or settlement includes a provision whereby the indemnifying party shall be excused from, and plaintiff or claimant in the indemnified party shall be solely responsible for, matter releases the Indemnified Party from all further defense of such Third Party Claim; and (ii) the maximum liability of the indemnifying party relating to such Third Party Claim shall be the amount of the proposed settlement if the amount thereafter recovered from the indemnified party on such Third Party Claim is greater than the amount of the proposed settlementwith respect thereto.
Appears in 1 contract
Provisions Regarding Indemnification. (a) The indemnified If, within the applicable survival period, any third party shall notify any party (or partiesthe "Indemnified Party") with respect to any third party claim which may give rise to a claim for indemnification against any other party (the "Indemnifying Party") under this Article 11, then the Indemnified Party shall promptly notify the indemnifying party (or parties) of any third-party claim, demand, action or proceeding for which indemnification will or may be sought under Sections 10.1 or 10.2 (a “Third Indemnifying Party Claim”), but in no event later than ten (10) Business Days after receiving notice of such Third Party Claimthereof promptly; provided, however, that no delay on the failure to so notify part of the indemnifying party will not Indemnified Party in notifying the Indemnifying Party shall relieve the indemnifying party Indemnifying Party from any liability or obligation hereunder in respect of such claim except unless (and then solely to the extent extent) the indemnifying party Indemnifying Party thereby is prejudiced as a result prejudiced. In the event any Indemnifying Party notifies the Indemnified Party within 20 days after the Indemnified Party has given notice of such failure, including where failure results in losses to the indemnifying party or matter that the forfeiture of substantive rights or defenses that would otherwise be available in Indemnifying Party is assuming the defense thereof, (i) the Indemnifying Party will defend the Indemnified Party against the matter with counsel of such claim. Such notice shall specify facts reasonably known to the indemnified party (or parties) giving rise to such indemnity rights. The indemnifying party will have the right, at its expense, to assume the defense thereof using counsel reasonably acceptable to the indemnified party. If the indemnifying party elects not to assume the defense or fails to notify the indemnified party, within ten (10) Business Days after delivery of the indemnified party’s notice of such Third Party Claim (which period shall toll during any period in which the indemnified party is in breach of Section 6.17 in respect of such claim), that it will assume the defense, then the indemnified party may employ counsel choice reasonably satisfactory to the indemnifying party to represent or defend it against any such Third Indemnified Party, (ii) the Indemnified Party Claim may retain separate co-counsel at its sole cost and the indemnifying party will pay the reasonable fees and disbursements of such counsel; provided, however, expense (except that the indemnifying party shall not, in connection with any legal proceeding or any separate but substantially similar legal proceedings arising out of the same general allegations, Indemnifying Party will be liable responsible for the fees and expenses of more than one the separate firm of attorneys at any time for all indemnified persons, except co-counsel to the extent that local counsel, in addition to its regular counsel, is required in order to effectively defend against such legal proceeding. If the indemnifying party does assume the defense of such Third Indemnified Party Claim, the indemnifying party shall have no obligation in respect of the indemnified party’s expenses; provided, concludes reasonably that the indemnified party shall have counsel the right to participate inIndemnifying Party has selected has a conflict of interest), at its own expense, but not control, the defense of any such Third Party Claim. In connection with any Third Party Claim, the Parties shall cooperate with each other in good faith, in such manner to preserve in full and (to the extent possible) the confidentiality of all business records and the attorney-client, work-product and any other potentially applicable privileges and to render each other assistance as they may reasonably require. No Third Party Claim shall be settled (iiii) without the prior written consent of the indemnifying party and (ii) without Indemnified Party, the prior written Indemnifying Party will not consent to the entry of any judgment with respect to the indemnified party matter, or enter into any settlement unless such the judgment or settlement provides for no relief other than can be satisfied solely by the payment of monetary damages for which money and no equitable or other relief is sought, the relevant indemnified parties will be indemnified Indemnifying Party pays such judgment or settlement in full; provided, however, that if a firm, written offer is made to settle any Third Party Claim and the indemnifying party proposes to accept such settlement and the indemnified party refuses to consent to such settlement, then: (i) the indemnifying party shall be excused fromfull or makes provision therefor, and such judgment or settlement includes a provision whereby the indemnified party shall be solely responsible for, plaintiff or claimant in the matter releases the Indemnified Party from all further defense of such Third Party Claim; and (ii) the maximum liability of the indemnifying party relating to such Third Party Claim shall be the amount of the proposed settlement if the amount thereafter recovered from the indemnified party on such Third Party Claim is greater than the amount of the proposed settlementwith respect thereto.
Appears in 1 contract
Samples: Asset Purchase Agreement (Gaylord Entertainment Co /De)
Provisions Regarding Indemnification. If, within the applicable survival period, any third party shall notify any Party (athe "Indemnified Party") The indemnified with respect to any third party claim or the commencement of any tax audit or any similar investigation by any taxing authority which may give rise to a claim for indemnification against any other party (or partiesthe "Indemnifying Party") under this Article 14, then the Indemnified Party shall promptly notify the indemnifying party (or parties) of any third-party claim, demand, action or proceeding for which indemnification will or may be sought under Sections 10.1 or 10.2 (a “Third Indemnifying Party Claim”), but in no event later than ten (10) Business Days after receiving notice of such Third Party Claimthereof promptly; provided, however, that no delay on the failure to so notify part of the indemnifying party will not Indemnified Party in notifying the Indemnified Party shall relieve the indemnifying party Indemnifying Party from any liability or obligation hereunder in respect of such claim except unless (and then solely to the extent extent) the indemnifying party Indemnifying Party thereby is prejudiced as a result materially prejudiced. In the event any Indemnifying Party notifies the Indemnified Party within 20 days after the Indemnified Party has given notice of such failure, including where failure results in losses to the indemnifying party or matter that the forfeiture of substantive rights or defenses that would otherwise be available in Indemnifying Party is assuming the defense thereof, (i) the Indemnifying Party will defend the Indemnified Party against the matter with counsel of such claim. Such notice shall specify facts reasonably known to the indemnified party (or parties) giving rise to such indemnity rights. The indemnifying party will have the right, at its expense, to assume the defense thereof using counsel reasonably acceptable to the indemnified party. If the indemnifying party elects not to assume the defense or fails to notify the indemnified party, within ten (10) Business Days after delivery of the indemnified party’s notice of such Third Party Claim (which period shall toll during any period in which the indemnified party is in breach of Section 6.17 in respect of such claim), that it will assume the defense, then the indemnified party may employ counsel choice reasonably satisfactory to the indemnifying party to represent or defend it against any such Third Indemnified Party, (ii) the Indemnified Party Claim may retain separate co-counsel at its sole cost and the indemnifying party will pay the reasonable fees and disbursements of such counsel; provided, however, expense (except that the indemnifying party shall not, in connection with any legal proceeding or any separate but substantially similar legal proceedings arising out of the same general allegations, Indemnifying Party will be liable responsible for the fees and expenses of more than one the separate firm of attorneys at any time for all indemnified persons, except co-counsel to the extent that local counsel, in addition to its regular counsel, is required in order to effectively defend against such legal proceeding. If the indemnifying party does assume the defense of such Third Indemnified Party Claim, the indemnifying party shall have no obligation in respect of the indemnified party’s expenses; provided, concludes reasonably that the indemnified party shall have counsel the right Indemnifying Party has selected has a conflict of interest), (iii) the Indemnified Party will not consent to participate in, at its own expense, but not control, the defense of any such Third Party Claim. In connection settlement with any Third Party Claim, the Parties shall cooperate with each other in good faith, in such manner to preserve in full (respect to the extent possible) the confidentiality of all business records and the attorney-client, work-product and any other potentially applicable privileges and to render each other assistance as they may reasonably require. No Third Party Claim shall be settled (i) matter without the prior written consent of the indemnifying party Indemnifying Party, and (iiiv) without the prior written consent of the indemnified party unless such settlement provides for no relief other than Indemnified Party, the payment of monetary damages for which the relevant indemnified parties Indemnifying Party will be indemnified in full; provided, however, that if a firm, written offer is made to settle any Third Party Claim and the indemnifying party proposes to accept such settlement and the indemnified party refuses to not consent to the entry of any judgment with respect to the matter, or enter into any settlement unless the Indemnifying Party pays all amounts in full and such settlement, then: (i) judgment or settlement includes a provision whereby the indemnifying party shall be excused from, and plaintiff or claimant in the indemnified party shall be solely responsible for, matter releases the Indemnified Party from all further defense of such Third Party Claim; and (ii) the maximum liability of the indemnifying party relating to such Third Party Claim shall be the amount of the proposed settlement if the amount thereafter recovered from the indemnified party on such Third Party Claim is greater than the amount of the proposed settlementwith respect thereto.
Appears in 1 contract
