Provisions Relating to Indemnity Claims. The following provisions will apply to any claim by the Indemnified Party or the Purchaser, whatever the case may be, for indemnification by the Indemnifying Party or the Vendor, whatever the case may be, pursuant to Sections 8.1 and 8.2 (an "Indemnity Claim"). 8.3.1. Promptly after becoming aware of any matter that may give rise to an Indemnity Claim, the Indemnified Party or the Purchaser will provide to the Indemnifying Party or the Vendor written notice of the Indemnity Claim specifying (to the extent that information is available) the factual basis for the Indemnity Claim and the amount of the Indemnity Claim or, if an amount is not then determinable, an estimate of the amount of the Indemnity Claim, if an estimate is feasible in the circumstances. 8.3.2. If an Indemnity Claim relates to an alleged liability to any other person (a "Third Party Liability"), including without limitation any governmental or regulatory body or any taxing authority, which is of a nature such that the Indemnified Party or the Purchaser is required by applicable law to make a payment to a third party before the relevant procedure for challenging the existence or quantum of the alleged liability can be implemented or completed, then the Indemnified Party or the Purchaser may, notwithstanding the provisions of sections 8.3.3. and 8.3.4 of this section, make such payment and forthwith demand reimbursement for such payment from the Indemnifying Party or the Vendor in accordance with this Agreement; provided that, if the alleged Third Party Liability as finally determined on completion of settlement negotiations or related legal proceedings is less than the amount which is paid by the Indemnifying Party or the Vendor in respect of the related Indemnity Claim, then the Indemnified Party or the Purchaser shall forthwith following the final determination pay to the Indemnifying Party or the Vendor the amount by which the amount of the Third Party Liability as finally determined is less than the amount which is so paid by the Indemnifying Party or the Vendor. 8.3.3. The Indemnified Party or the Purchaser shall not negotiate, settle, compromise or pay (except in the case of payment of a judgement) any Third Party Liability as to which it proposes to assert an Indemnity Claim, except with the prior consent of the Indemnifying Party or the Vendor (which consent shall not be unreasonably withheld or delayed), unless there is a reasonable possibility that such Third Party Liability may materially and adversely affect the Purchased Assets or the Indemnified Party or the Purchaser, in which case the Indemnified Party or the Purchaser shall have the right, after notifying the Indemnifying Party or the Vendor, to negotiate, settle, compromise or pay such Third Party Liability without prejudice to its rights of indemnification hereunder. The Indemnified Party or the Purchaser shall notify the Indemnifying Party or the Vendor within one (1) week of any third party claims being asserted. 8.3.4. With respect to any Third Party Liability, provided the Indemnifying Party or the Vendor first admit the Indemnified Party's or the Purchaser's right to indemnification for the amount of such Third Party Liability which may at any time be determined or settled, then, in any legal, administrative or other proceedings in connection with the matters forming the basis of the Third Party Liability, the following procedures will apply: 8.3.4.1. except as contemplated by subparagraph 8.3.4.3 of this section, the Indemnifying Party or the Vendor will have the right to assume carriage of the compromise or settlement of the Third Party Liability and the conduct of any related legal, administrative or other proceedings, but the Indemnified Party or the Purchaser shall have the right and shall be given the opportunity to participate in the defence of the Third Party Liability, to consult with the Indemnifying Party or the Vendor in the settlement of the Third Party Liability and the conduct of related legal, administrative and other proceedings (including consultation with counsel) and to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Indemnifying Party or the Vendor and the Indemnified Party or the Purchaser shall be retained by the Indemnifying Party or the Vendor; 8.3.4.2. the Indemnifying Party or the Vendor will co-operate with the Indemnified Party or the Purchaser in relation to the Third Party Liability, will keep it fully advised with respect thereto, will provide it with copies of all relevant documentation as it becomes available, will provide it with access to all records and files relating to the defence of the Third Party Liability and will meet with representatives of the Indemnified Party or the Purchaser at all reasonable times to discuss the Third Party Liability; and 8.3.4.3. notwithstanding subparagraphs 8.3.4.1 and 8.
Appears in 4 contracts
Samples: Asset Purchase Agreement (Workstream Inc), Asset Purchase Agreement (Peopleview Inc), Asset Purchase Agreement (Workstream Inc)
Provisions Relating to Indemnity Claims. The following provisions will apply to any claim by the Indemnified Party or the Purchaser, whatever the case may be, for indemnification by the Indemnifying Party or the Vendor, whatever the case may be, pursuant to Sections 8.1 and 8.2 (an "Indemnity Claim").
8.3.1. 8.3.1 Promptly after becoming aware of any matter that may give rise to a claim by the Assignee for indemnification by the Assignor pursuant to Section 8.1 or a claim by the Assignor for indemnification by the Assignee pursuant to Section 8.2, (an "Indemnity Claim"), the Indemnified Party or party making the Purchaser claim (the "Indemnitee") will provide to the Indemnifying Party or other party (the Vendor "Indemnitor") written notice of the Indemnity Claim specifying (to the extent that information is available) the factual basis for the Indemnity Claim and the amount of the Indemnity Claim (the "Damages") or, if an amount is Damages are not then determinable, an estimate of the amount of the Indemnity ClaimDamages, if an estimate is feasible in the circumstances.
8.3.2. If an 8.3.2 With respect to any Indemnity Claim that relates to an alleged liability to any other third person (a the "Third Party Liability"), including without limitation any governmental or regulatory body or any taxing authority, which is of a nature such that the Indemnified Party or the Purchaser is required by applicable law to make a payment to a third party before the relevant procedure for challenging the existence or quantum of the alleged liability can be implemented or completed, then the Indemnified Party or the Purchaser may, notwithstanding the provisions of sections 8.3.3. and 8.3.4 of this section, make such payment and forthwith demand reimbursement for such payment from the Indemnifying Party or the Vendor in accordance with this Agreement; provided that, if the alleged Third Party Liability as finally determined on completion of settlement negotiations or related legal proceedings is less than the amount which is paid by the Indemnifying Party or the Vendor in respect of the related Indemnity Claim, then the Indemnified Party or the Purchaser shall forthwith following the final determination pay to the Indemnifying Party or the Vendor the amount by which the amount of the Third Party Liability as finally determined is less than the amount which is so paid by the Indemnifying Party or the Vendor.
8.3.3. The Indemnified Party or the Purchaser shall not negotiate, settle, compromise or pay (except in the case of payment of a judgement) any Third Party Liability as to which it proposes to assert an Indemnity Claim, except with the prior consent of the Indemnifying Party or the Vendor (which consent shall not be unreasonably withheld or delayed), unless there is a reasonable possibility that such Third Party Liability may materially and adversely affect the Purchased Assets or the Indemnified Party or the Purchaser, in which case the Indemnified Party or the Purchaser shall have the right, after notifying the Indemnifying Party or the Vendor, to negotiate, settle, compromise or pay such Third Party Liability without prejudice to its rights of indemnification hereunder. The Indemnified Party or the Purchaser shall notify the Indemnifying Party or the Vendor within one (1) week of any third party claims being asserted.
8.3.4. With respect to any Third Party Liability, provided the Indemnifying Party or Indemnitor first admits the Vendor first admit the Indemnified Party's or the PurchaserIndemnitee's right to indemnification for the amount of such Third Party Liability which may at any time be determined or settled, then, then in any legal, administrative or other proceedings in connection with the matters forming the basis of the Third Party Liability, the following procedures will apply:
8.3.4.1. (a) except as contemplated by subparagraph 8.3.4.3 of this sectionparagraph (c) below, the Indemnifying Party or the Vendor Indemnitor will have the right to assume carriage of the compromise or settlement of the Third Party Liability and the conduct of any related legal, administrative or other proceedings, but the Indemnified Party or the Purchaser shall Indemnitee shall, at its cost and expense, have the right and shall be given the opportunity to participate in the defence defense of the Third Party Liability, to consult with the Indemnifying Party or the Vendor Indemnitor in the settlement of the Third Party Liability and the conduct of related legal, administrative and other proceedings (including consultation with counsel) and to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Indemnifying Party or the Vendor and the Indemnified Party or the Purchaser shall be retained by the Indemnifying Party or the Vendor);
8.3.4.2. the Indemnifying Party or the Vendor (b) each party will co-operate with the Indemnified Party or the Purchaser other in relation to the Third Party Liability, will keep it fully advised with respect thereto, will provide it with copies of all relevant documentation as it becomes available, will provide it with access to all records and files relating to the defence defense of the Third Party Liability and will meet with representatives of the Indemnified Party or the Purchaser other party at all reasonable times to discuss the Third Party Liability; and
8.3.4.3(c) notwithstanding paragraphs (a) and (b), the Indemnitor will not settle the Third Party Liability or conduct any legal, administrative or other proceedings in any manner which could, in the reasonable opinion of the Indemnitee, have a material adverse effect on the Purchased Assets, except with the prior written consent of the Indemnitee.
8.3.3 If, with respect to any Third Party Liability, the Indemnitor does not admit the Indemnitee' s right to indemnification or declines to assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability, then the following provisions will apply:
(a) the Indemnitee, at its discretion, may assume carriage of any legal, administrative or other proceedings relating to the Third Party Liability and may defend the Third Party Liability on such terms as the Indemnitee, acting in good faith, considers advisable,
(b) any cost, loss, damage or expense incurred or suffered by the Indemnitee in the settlement of such Third Party Liability or the conduct of any legal, administrative or other proceedings shall be added to the amount of the Indemnity Claim; and
(c) if, pursuant to this Section 8.3.3, the Indemnitee undertakes the investigation and defence of any Third Party Liability, then the Indemnitee may compromise and settle the legal, administrative or other proceedings relating to the Third Party Liability but the Indemnitor shall not be bound by any compromise or settlement of such legal, administrative or other proceedings relating to such Third Party Liability effected without its consent (which consent is not to be unreasonably withheld) and, in no event, shall the Indemnitor be required to assume any liability for any Third Party Liability in excess of the limitations set forth herein.
8.3.4 An Indemnity Claim not involving a Third Party Liability shall be indemnified, paid or reimbursed promptly after such Indemnity Claim has been finally determined or agreed to in writing by the Assignee and Assignor.
8.3.5 Any Claim for Damages made by the Assignee hereunder may be set-off by the Assignee against any payment owed to the Assignor. notwithstanding subparagraphs 8.3.4.1 and 8The exercise of such right of set off by the Assignee in good faith, whether or not ultimately determined to be justified, shall not constitute a default under this Agreement, regardless of whether the Assignor disputes such set off, or whether such set off is for a contingent or an unliquidated amount.
Appears in 3 contracts
Samples: Intellectual Property Assignment Agreement, Intellectual Property Assignment Agreement (Loop Industries, Inc.), Intellectual Property Assignment Agreement (First American Group Inc.)
Provisions Relating to Indemnity Claims. The following provisions will apply to any claim by the either NHL, the Shareholders or Sonoma (the "Indemnified Party or the Purchaser, whatever the case may be, Party") for indemnification by the others (the "Indemnifying Party Party") pursuant to section 14.1, 14.2 or the Vendor14.3 hereof, whatever as the case may bebe (hereinafter, pursuant to Sections 8.1 and 8.2 (in this section, called an "Indemnity Claim").
8.3.1. (a) Promptly after becoming aware of any matter that may give rise to an Indemnity Claim, the Indemnified Party or the Purchaser will provide to the Indemnifying Party or the Vendor written notice of the Indemnity Claim specifying (to the extent that information is available) the factual basis for the Indemnity Claim and the amount of the Indemnity Claim or, if an amount is not then determinable, an estimate of the amount of the Indemnity Claim, if an estimate is feasible in the circumstances.
8.3.2. (b) If an Indemnity Claim relates to an alleged liability to any other person (hereinafter, in this section, called a "Third Party Liability"), including without limitation any governmental or regulatory body or any taxing authority, which is of a nature such that the Indemnified Party or the Purchaser is required by applicable law to make a payment to a third party before the relevant procedure for challenging the existence or quantum of the alleged liability can be implemented or completed, then the Indemnified Party or the Purchaser may, notwithstanding the provisions of sections 8.3.3. paragraphs (c) and 8.3.4 (d) of this section, make such payment and forthwith demand reimbursement for such payment from the Indemnifying Party or the Vendor in accordance with this Agreement; provided that, if the alleged Third Party Liability liability to the third party as finally determined on upon completion of settlement negotiations or related legal proceedings is less than the amount which is paid by the Indemnifying Party or the Vendor in respect of the related Indemnity Claim, then the Indemnified Party or the Purchaser shall forthwith following the final determination pay to the Indemnifying Party or the Vendor the amount by which the amount of the Third Party Liability liability as finally determined is less than the amount which is so paid by the Indemnifying Party or the VendorParty.
8.3.3. (c) The Indemnified Party or the Purchaser shall not negotiate, settle, compromise or pay (except in the case of payment of a judgementjudgment) any Third Party Liability as to which it proposes to assert an Indemnity Claim, except with the prior consent of the Indemnifying Party or the Vendor (which consent shall not be unreasonably withheld or delayed), unless there is a reasonable possibility that such Third Party Liability may materially and adversely affect the Purchased Assets or condition of the Indemnified Party or the PurchaserParty, in which case the Indemnified Party or the Purchaser shall have the right, after notifying the Indemnifying Party or the VendorParty, to negotiate, settle, compromise or pay such Third Party Liability without prejudice to its rights of indemnification hereunder. The Indemnified Party or the Purchaser shall notify the Indemnifying Party or the Vendor within one (1) week of any third party claims being asserted.
8.3.4. (d) With respect to any Third Party Liability, provided the Indemnifying Party or the Vendor first admit admits the Indemnified Party's or the Purchaser's right to indemnification for the amount of such Third Party Liability which may at any time be determined or settled, then, then in any legal, administrative or other proceedings in connection with the matters forming the basis of the Third Party Liability, the following procedures will apply:
8.3.4.1. (i) except as contemplated by subparagraph 8.3.4.3 of this section(iii) below, the Indemnifying Party or the Vendor will have the right to assume carriage of the compromise or settlement of the Third Party Liability and the conduct of any related legal, administrative or other proceedings, but the Indemnified Party or the Purchaser shall have the right and shall be given the opportunity to participate in the defence of the Third Party Liability, to consult with the Indemnifying Party or the Vendor in the settlement of the Third Party Liability and the conduct of related legal, administrative and other proceedings (including consultation with counsel) and to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Indemnifying Party or the Vendor and the Indemnified Party or the Purchaser shall be retained by the Indemnifying Party or the VendorParty;
8.3.4.2. (ii) the Indemnifying Party or the Vendor will co-operate co‑operate with the Indemnified Party or the Purchaser in relation to the Third Party Liability, will keep it fully advised with respect thereto, will provide it with copies of all relevant documentation as it becomes available, will provide it with access to all records and files relating to the defence of the Third Party Liability and will meet with representatives of the Indemnified Party or the Purchaser at all reasonable times to discuss the Third Party Liability; , and
8.3.4.3. (iii) notwithstanding subparagraphs 8.3.4.1 (i) and 8(ii), the Indemnifying Party will not settle the Third Party Liability or conduct any legal, administrative or other proceedings in any manner which could, in the reasonable opinion of the Indemnified Party, have a material adverse affect on the condition of the Indemnified Party, except with the prior written consent of the Indemnified Party.
(e) If, with respect to any Third Party Liability, the Indemnifying Party does not admit the Indemnified Party's right to indemnification or decline to assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability, then the following provisions will apply:
(i) the Indemnified Party, at its discretion, may assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability and may defend or settle the Third Party Liability on such terms as the Indemnified Party, acting in good faith, considers advisable, and
(ii) any cost, lost, damage or expense incurred or suffered by the Indemnified Party in the settlement of such Third Party Liability or the conduct of any legal, administrative or other proceedings shall be added to the amount of the Indemnity Claim.
Appears in 2 contracts
Samples: Securities Exchange Agreement (Nutritional High International Inc), Securities Exchange Agreement (Nutritional High International Inc)
Provisions Relating to Indemnity Claims. The following provisions will apply to any claim by the Indemnified Party or the Purchaser, whatever the case may be, Purchaser for indemnification by the Indemnifying Party or the Vendor, whatever the case may be, Vendor pursuant to Sections section 8.1 and 8.2 hereof (hereinafter, in this section, called an "“Indemnity Claim"”).
8.3.1. (a) Promptly after becoming aware of any matter that may give rise to an Indemnity Claim, the Indemnified Party or the Purchaser will provide to the Indemnifying Party or the Vendor written notice of the Indemnity Claim specifying (to the extent that information is available) the factual basis for the Indemnity Claim and the amount of the Indemnity Claim or, if an amount is not then determinable, an estimate of the amount of the Indemnity Claim, if an any estimate is feasible in the circumstances.
8.3.2. (b) If an Indemnity Claim relates to an alleged liability to any other person (hereinafter, in this section, called a "“Third Party Liability"”), including without limitation any governmental or regulatory body or any taxing authority, which is of a nature such that the Indemnified Party or the Purchaser is required by applicable law to make a payment to a third party before the relevant procedure for challenging the existence or quantum of the alleged liability can be implemented or completed, then the Indemnified Party or the Purchaser may, notwithstanding the provisions of sections 8.3.3. paragraph (3) and 8.3.4 (4) of this section, make such payment and forthwith demand reimbursement for such payment from the Indemnifying Party or the Vendor in accordance with this Agreement; provided that, if the alleged Third Party Liability liability to the third party as finally determined on upon completion of settlement negotiations or related legal proceedings is less than that the amount which is paid by the Indemnifying Party or the Vendor in respect of the related Indemnity Claim, then the Indemnified Party or the Purchaser shall forthwith following the final determination pay to the Indemnifying Party or the Vendor the amount by which the amount of the Third Party Liability liability as finally determined is less than the amount which is so paid by the Indemnifying Party or the Vendor.
8.3.3. (c) The Indemnified Party or the Purchaser shall not negotiate, settle, compromise or pay (except in the case of payment of a judgementjudgment) any Third Party Liability as to which it proposes to assert an Indemnity Claim, except with the prior consent of the Indemnifying Party or the Vendor (which consent shall not be unreasonably withheld or delayed), unless there is a reasonable possibility that such Third Party Liability may materially and adversely affect the Purchased Assets or condition of the Indemnified Party or business of the Purchaser, in which case the Indemnified Party or the Purchaser shall have the right, after notifying the Indemnifying Party or the Vendor, to negotiate, settle, compromise or pay such Third Party Liability without prejudice to its rights of indemnification hereunder. The Indemnified Party or the Purchaser shall notify the Indemnifying Party or the Vendor within one (1) week of any third party claims being asserted.
8.3.4. (d) With respect to any Third Party Liability, provided the Indemnifying Party or the Vendor first admit the Indemnified Party's or admits the Purchaser's ’s right to indemnification for the amount of such Third Party Liability which may at any time be determined or settled, then, then in any legal, administrative or other proceedings in connection with the matters forming the basis of the Third Party Liability, the following procedures will apply:
8.3.4.1. (i) except as contemplated by subparagraph 8.3.4.3 of this section(c) below, the Indemnifying Party or the Vendor will have the right to assume carriage of the compromise or settlement of the Third Party Liability and the conduct of any related legal, administrative or other proceedings, but the Indemnified Party or the Purchaser shall have the right and shall be given the opportunity to participate in the defence defense of the Third Party Liability, to consult with the Indemnifying Party or the Vendor in the settlement of the Third Party Liability and the conduct of related legal, administrative and other proceedings (including consultation with counsel) and to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Indemnifying Party or the Vendor and the Indemnified Party or the Purchaser shall be retained by the Indemnifying Party or the Vendor;
8.3.4.2. the Indemnifying Party or (ii) the Vendor will co-operate with the Indemnified Party or the Purchaser in relation to the Third Party Liability, will keep it fully advised with respect thereto, will provide it with copies of all relevant documentation as it becomes available, will provide it with access to all records and files relating to the defence defense of the Third Party Liability and will meet with representatives of the Indemnified Party or the Purchaser at all reasonable times to discuss the Third Party Liability; and
8.3.4.3. (iii) notwithstanding subparagraphs 8.3.4.1 (a) and 8(b), the Vendor will not settle the Third Party Liability or conduct any legal, administrative or other proceedings in any manner which would, in the reasonable opinion of the Purchaser, have a material adverse affect on the condition of the business or the Purchaser, except with the prior written consent of the Purchaser.
(e) If, with respect to any Third Party Liability, the Vendor does not admit the Purchaser’s right to indemnification or declines to assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability, the following provisions with apply:
(i) the Purchaser, at its discretion, may assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability and may defend or settle the Third Party Liability on such terms as the Purchaser, acting in good faith, considers advisable; and
(ii) any cost, lost, damage or expense incurred or suffered by the Purchaser in the settlement of such Third Party Liability or the conduct of any legal, administrative or other proceedings shall be added to the amount of the Indemnity Claim.
Appears in 1 contract
Provisions Relating to Indemnity Claims. The following provisions will apply to any claim by the any Purchaser Indemnified Party or Vendor Indemnified Party (each an “Indemnified Party”) for indemnification by the Vendors or the Purchaser, whatever the case may beas applicable, for indemnification by the (each an “Indemnifying Party or the Vendor, whatever the case may be, Party”) pursuant to Sections 8.1 and 8.2 this Article 8 (each an "“Indemnity Claim"”).
8.3.1. (a) Promptly after becoming aware of any matter that may give rise to an Indemnity Claim, the Indemnified Party or the Purchaser will provide to the Indemnifying Party or the Vendor written notice of the Indemnity Claim specifying (to the extent that information is available) the factual basis for the Indemnity Claim and the amount of the Indemnity Claim or, if an amount is not then determinable, an estimate of the amount of the Indemnity Claim, if an estimate is feasible in the circumstances.
8.3.2. (b) If an Indemnity Claim relates to an alleged liability of an Indemnified Party to any other person Person (a "“Third Party Liability"”), including without limitation any governmental authority or regulatory body or any taxing authority, which is of a nature such that the Indemnified Party or the Purchaser is required by applicable law to make a payment to a third party before the relevant procedure for challenging the existence or quantum amount of the alleged liability can be implemented or completed, then the Indemnified Party or the Purchaser may, notwithstanding the provisions of sections 8.3.3. paragraphs (c) and 8.3.4 (d) of this sectionSection, make such payment and forthwith demand reimbursement for such payment from the Indemnifying Party or the Vendor in accordance with this Agreement; provided that, if the alleged Third Party Liability as finally determined on completion of settlement negotiations or related legal proceedings is less than the amount which is paid by the Indemnifying Party or the Vendor in respect of the related Indemnity Claim, then the Indemnified Party or the Purchaser shall forthwith following the final determination pay to the Indemnifying Party or the Vendor the amount by which the amount of the Third Party Liability as finally determined is less than the amount which is so paid by the Indemnifying Party or the VendorParty.
8.3.3. (c) The Indemnified Party or the Purchaser shall not negotiate, settle, compromise or pay (except in the case of payment of a judgementjudgment) any Third Party Liability as to which it proposes to assert an Indemnity Claim, except with the prior written consent of the Indemnifying Party or the Vendor (which consent shall not be unreasonably withheld withheld, conditioned or delayed), unless the Indemnified Party determines in good faith that there is a reasonable possibility probability that such Third Party Liability may materially and adversely affect the Purchased Assets assets, liabilities, operations, affairs and financial conditions of the Business or the Indemnified Party or the PurchaserParty, in which case the Indemnified Party or the Purchaser shall have the right, after notifying the Indemnifying Party or and provided that the VendorIndemnified Party receives, as part of the settlement and compromise, a legally binding and enforceable unconditional release, to negotiate, settle, compromise or pay such Third Party Liability without prejudice to its rights of indemnification hereunder. The Indemnified Party or the Purchaser shall notify the Indemnifying Party or the Vendor within one (1) week of any third party claims being asserted.
8.3.4. (d) With respect to any Third Party Liability, provided the Indemnifying Party or the Vendor first admit acknowledges in writing that it will indemnify and save harmless the Indemnified Party's or Party to the Purchaser's right to indemnification for the amount of such Third Party Liability which may at any time be determined or settledextent it is liable with respect thereof hereunder, then, in any legal, administrative or other proceedings in connection with the matters forming the basis of the Third Party Liability, the following procedures will apply:
8.3.4.1. (i) except as contemplated by subparagraph 8.3.4.3 (iv) of this sectionSection, the Indemnifying Party or the Vendor will have the right to assume carriage of the compromise or settlement of the Third Party Liability and the conduct of any related legal, administrative or other proceedingsproceedings upon giving written notice to the Indemnified Party within no more than 15 (fifteen) Business Days of the receipt of the notice of the Indemnity Claim as provided in paragraph (a) of this Section (or sooner if the nature of the alleged Third Party Liability so requires and if so specified in the said notice), but the Indemnified Party or the Purchaser shall have the right and shall be given the opportunity to participate in the defence of the Third Party LiabilityLiability at its own cost and expense, to consult with the Indemnifying Party or the Vendor in the settlement of the Third Party Liability and the conduct of related legal, administrative and other proceedings (including consultation with counsel) and to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Indemnifying Party or the Vendor and the Indemnified Party or the Purchaser shall be retained by the Indemnifying Party or the VendorParty;
8.3.4.2. (ii) the Indemnifying Party or the Vendor will co-operate with the Indemnified Party or the Purchaser in relation to the Third Party Liability, will keep it fully advised with respect thereto, will provide it with copies of all relevant documentation as it becomes available, will provide it with access to all records and files relating to the defence of the Third Party Liability and will meet with representatives of the Indemnified Party or the Purchaser at all reasonable times to discuss the Third Party Liability and the progress of the litigation relating thereto;
(iii) the Indemnified Party will use its commercially 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 participating in the defence of the Third Party Liability and will, at the request of the Indemnifying Party, make available to the Indemnifying Party or its representatives on a timely basis all documents, records and other materials in the possession of the Indemnified Party reasonably required by the Indemnifying Party for its use in defending the Third Party Liability; and
8.3.4.3. (iv) notwithstanding subparagraphs 8.3.4.1 (i), (ii) and 8(iii) of this Section, the Indemnifying Party will not settle the Third Party Liability, except with the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), unless the Indemnifying Party determines in good faith that there is a reasonable probability that such Third Party Liability may materially and adversely affect the assets, liabilities, operations, affairs and financial conditions of the Business or the Indemnifying Party and provided that the Indemnifying Party receives, as part of the settlement, a legally binding and enforceable unconditional release.
(e) If, with respect to any Third Party Liability, the Indemnifying Party fails to give notice of its intention to assume carriage of the compromise or settlement of such Third Party Liability and the conduct of any related legal, administrative or other proceedings in accordance with paragraph (d) of this Section or does not acknowledge in writing that it will indemnify and save harmless the Indemnified Party to the extent it is liable with respect thereof hereunder or declines to assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability, then the following provisions will apply:
(i) the Indemnified Party, at its discretion, may assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability and may defend or settle the Third Party Liability on such terms as the Indemnified Party, acting in good faith, considers advisable; and
(ii) any cost, damage or expense incurred or suffered by the Indemnified Party in the settlement or defence of such Third Party Liability or the conduct of any legal, administrative or other proceedings shall be added to the amount of the Damages claimed.
(f) With respect to any Indemnity Claim that does not involve a claim by a third party (each a “Direct Claim”), the following provisions shall apply. Following receipt of the notice of the Direct Claim as provided in paragraph (a) of this Section, the Indemnifying Party shall have thirty (30) Business Days to make such investigation of the Direct Claim as is considered necessary or desirable. For the purpose of such investigation, the Indemnified Party shall make available to the Indemnifying Party the information relied upon by the Indemnified Party to substantiate the Direct Claim, together with all such other information as the Indemnifying Party may reasonably request. If the parties agree at or prior to the expiration of such thirty (30) Business Day period (or any mutually agreed upon extension thereof) to the validity and amount of such Direct Claim, the Indemnifying Party shall immediately pay to the Indemnified Party the full agreed upon amount of the Direct Claim, and in the absence of agreement within such time, the dispute shall be determined by any court of competent jurisdiction.
(g) Nothing in this Agreement in any way restricts or limits the general obligation at law of an Indemnified Party to mitigate any loss which it may suffer or incur by reason of the breach or inaccuracy of any representation or warranty or the breach or non-performance of any covenant of an Indemnifying Party under this Agreement.
Appears in 1 contract
Samples: Share Purchase Agreement (Resolute Forest Products Inc.)
Provisions Relating to Indemnity Claims. The following provisions will apply to any claim by the either the Vendor or the Indemnified Party or (the Purchaser, whatever the case may be, "Indemnified Party") for indemnification by the other (the "Indemnifying Party Party") pursuant to section 11.1 or the Vendor11.2 hereof, whatever as the case may bebe (hereinafter, pursuant to Sections 8.1 and 8.2 (in this section, called an "Indemnity Claim").
8.3.1. (a) Promptly after becoming aware of any matter that may give rise to an Indemnity Claim, the Indemnified Party or the Purchaser will provide to the Indemnifying Party or the Vendor written notice of the Indemnity Claim specifying (to the extent that information is available) the factual basis for the Indemnity Claim and the amount of the Indemnity Claim or, if an amount is not then determinable, an estimate of the amount of the Indemnity Claim, if an estimate is feasible in the circumstances.
8.3.2. (b) If an Indemnity Claim relates to an alleged liability to any other person (hereinafter, in this section, called a "Third Party Liability"), including without limitation any governmental or regulatory body or any taxing authority, which is of a nature such that the Indemnified Party or the Purchaser is required by applicable law to make a payment to a third party before the relevant procedure for challenging the existence or quantum of the alleged liability can be implemented or completed, then the Indemnified Party or the Purchaser may, notwithstanding the provisions of sections 8.3.3. paragraphs (c) and 8.3.4 (d) of this section, make such payment and forthwith demand reimbursement for such payment from the Indemnifying Party or the Vendor in accordance with this Agreement; provided that, if the alleged Third Party Liability liability to the third party as finally determined on upon completion of settlement negotiations or related legal proceedings is less than the amount which is paid by the Indemnifying Party or the Vendor in respect of the related Indemnity Claim, then the Indemnified Party or the Purchaser shall forthwith following the final determination pay to the Indemnifying Party or the Vendor the amount by which the amount of the Third Party Liability liability as finally determined is less than the amount which is so paid by the Indemnifying Party or the VendorParty.
8.3.3. (c) The Indemnified Party or the Purchaser shall not negotiate, settle, compromise or pay (except in the case of payment of a judgementjudgment) any Third Party Liability as to which it proposes to assert an Indemnity Claim, except with the prior consent of the Indemnifying Party or the Vendor (which consent shall not be unreasonably withheld or delayed), unless there is a reasonable possibility that such Third Party Liability may materially and adversely affect the condition of the Purchased Assets or the Indemnified Party or the PurchaserParty, in which case the Indemnified Party or the Purchaser shall have the right, after notifying the Indemnifying Party or the VendorParty, to negotiate, settle, compromise or pay such Third Party Liability without prejudice to its rights of indemnification hereunder. The Indemnified Party or the Purchaser shall notify the Indemnifying Party or the Vendor within one (1) week of any third party claims being asserted.
8.3.4. (d) With respect to any Third Party Liability, provided the Indemnifying Party or the Vendor first admit admits the Indemnified Party's or the Purchaser's right to indemnification for the amount of such Third Party Liability which may at any time be determined or settled, then, then in any legal, administrative or other proceedings in connection with the matters forming the basis of the Third Party Liability, the following procedures will apply:
8.3.4.1. (i) except as contemplated by subparagraph 8.3.4.3 of this section(iii) below, the Indemnifying Party or the Vendor will have the right to assume carriage of the compromise or settlement of the Third Party Liability and the conduct of any related legal, administrative or other proceedings, but the Indemnified Party or the Purchaser shall have the right and shall be given the opportunity to participate in the defence of the Third Party Liability, to consult with the Indemnifying Party or the Vendor in the settlement of the Third Party Liability and the conduct of related legal, administrative and other proceedings (including consultation with counsel) and to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Indemnifying Party or the Vendor and the Indemnified Party or the Purchaser shall be retained by the Indemnifying Party or the VendorParty;
8.3.4.2. (ii) the Indemnifying Party or the Vendor will co-operate with the Indemnified Party or the Purchaser in relation to the Third Party Liability, will keep it fully advised with respect thereto, will provide it with copies of all relevant documentation as it becomes available, will provide it with access to all records and files relating to the defence of the Third Party Liability and will meet with representatives of the Indemnified Party or the Purchaser at all reasonable times to discuss the Third Party Liability; , and
8.3.4.3. (iii) notwithstanding subparagraphs 8.3.4.1 (i) and 8(ii), the Indemnifying Party will not settle the Third Party Liability or conduct any legal, administrative or other proceedings in any manner which could, in the reasonable opinion of the Indemnified Party, have a material adverse affect on the condition of the Purchased Assets or the Indemnified Party, except with the prior written consent of the Indemnified Party.
(e) If, with respect to any Third Party Liability, the Indemnifying Party does not admit the Indemnified Party's right to indemnification or decline to assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability, then the following provisions will apply:
(i) the Indemnified Party, at its discretion, may assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability and may defend or settle the Third Party Liability on such terms as the Indemnified Party, acting in good faith, considers advisable, and
(ii) any cost, lost, damage or expense incurred or suffered by the Indemnified Party in the settlement of such Third Party Liability or the conduct of any legal, administrative or other proceedings shall be added to the amount of the Indemnity Claim.
Appears in 1 contract
Provisions Relating to Indemnity Claims. The following provisions will apply to any claim by the Indemnified Party or the Purchaser, whatever the case may be, Deal Capital for indemnification by the Indemnifying Party or the Vendor, whatever the case may be, Subsidiary and Sonora Copper pursuant to Sections Section 8.1 and 8.2 or otherwise as outlined herein (in this Section, an "“Indemnity Claim").”):
8.3.1. (a) Promptly after becoming aware of any matter that may give rise to an Indemnity Claim, the Indemnified Party or the Purchaser Deal Capital will provide to the Indemnifying Party or the Vendor Subsidiary and Sonora Copper written notice of the Indemnity Claim specifying (to the extent that information is available) the factual basis for the Indemnity Claim and the amount of the Indemnity Claim or, if an amount is not then determinable, an estimate of the amount of the Indemnity Claim, if an estimate is feasible in the circumstances.
8.3.2. (b) If an Indemnity Claim relates to an alleged liability of Deal Capital to any other person (in this Section, a "“Third Party Liability"”), including without limitation any governmental or regulatory body or any taxing authority, which is of a nature such that the Indemnified Party or the Purchaser Deal Capital is required by applicable law to make a payment to a third party before the relevant procedure for challenging the existence or quantum of the alleged liability can be implemented or completed, then the Indemnified Party or the Purchaser Deal Capital may, notwithstanding the provisions of sections 8.3.3. paragraphs (c) and 8.3.4 (d) of this sectionSection, make such payment and forthwith demand reimbursement for such payment from the Indemnifying Party or the Vendor Subsidiary and Sonora Copper in accordance with this Agreement; provided that, if the alleged Third Party Liability liability to the third party as finally determined on upon completion of settlement negotiations or related legal proceedings is less than the amount which is paid by the Indemnifying Party or the Vendor Subsidiary and Sonora Copper in respect of the related Indemnity Claim, then the Indemnified Party or the Purchaser shall Deal Capital will forthwith following the final determination pay to the Indemnifying Party or the Vendor Subsidiary and Sonora Copper the amount by which the amount of the Third Party Liability liability as finally determined is less than the amount which is so paid by the Indemnifying Party or the VendorSubsidiary and Sonora Copper.
8.3.3. The Indemnified Party or the Purchaser shall (c) Deal Capital will not negotiate, settle, compromise or pay (except in the case of payment of a judgement) any Third Party Liability as to which it proposes to assert an Indemnity Claim, except with the prior consent of the Indemnifying Party or the Vendor Subsidiary and Sonora Copper (which consent shall must not be unreasonably withheld or delayed), unless there is a reasonable possibility that such Third Party Liability may materially and adversely affect the Purchased Assets or the Indemnified Party or the Purchaserbusiness of Deal Capital, in which case the Indemnified Party or the Purchaser shall Deal Capital will have the right, after notifying the Indemnifying Party or the VendorSubsidiary and Sonora Copper, to negotiate, settle, compromise or pay such Third Party Liability without prejudice to its rights of indemnification hereunder. The Indemnified Party or the Purchaser shall notify the Indemnifying Party or the Vendor within one (1) week of any third party claims being asserted.
8.3.4. (d) With respect to any Third Party Liability, provided the Indemnifying Party or the Vendor Subsidiary and Sonora Copper first admit the Indemnified Party's or the Purchaser's Deal Capital’s right to indemnification for the amount of such Third Party Liability which may at any time be determined or settled, then, then in any legal, administrative or other proceedings in connection with the matters forming the basis of the Third Party Liability, the following procedures will apply:
8.3.4.1. (i) except as contemplated by subparagraph 8.3.4.3 (iii) of this sectionparagraph, the Indemnifying Party or the Vendor Subsidiary and Sonora Copper will have the right to assume carriage of the compromise or settlement of the Third Party Liability and the conduct of any related legal, administrative or other proceedings, but the Indemnified Party or the Purchaser shall Deal Capital and Sonora Copper will have the right and shall will be given the opportunity to participate in the defence of the Third Party Liability, to consult with the Indemnifying Party or the Vendor Subsidiary and Sonora Copper in the settlement of the Third Party Liability and the conduct of related legal, administrative and other proceedings (including consultation with counsel) and to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Indemnifying Party or the Vendor Subsidiary, Sonora Copper and the Indemnified Party or the Purchaser shall Deal Capital will be retained by the Indemnifying Party or the VendorSubsidiary and Sonora Copper;
8.3.4.2. (ii) the Indemnifying Party or the Vendor Subsidiary and Sonora Copper will co-operate with the Indemnified Party or the Purchaser Deal Capital in relation to the Third Party Liability, will keep it fully advised with respect thereto, will provide it with copies of all relevant documentation as it becomes available, will provide it with access to all records and files relating to the defence of the Third Party Liability and will meet with representatives of the Indemnified Party or the Purchaser Deal Capital at all reasonable times to discuss the Third Party Liability; and
8.3.4.3. (iii) notwithstanding subparagraphs 8.3.4.1 (i) and 8(ii) of this paragraph, the Subsidiary and Sonora Copper will not settle the Third Party Liability or conduct any legal, administrative or other proceedings in any manner which could, in the reasonable opinion of Deal Capital, have a material adverse affect on the business of Deal Capital, except with the prior written consent of Deal Capital.
(e) If, with respect to any Third Party Liability, the Subsidiary and Sonora Copper do not admit Deal Capital’s right to indemnification or decline to assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability, then the following provisions will apply:
(i) Deal Capital, at its discretion, may assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability and may defend or settle the Third Party Liability on such terms as Deal Capital, acting in good faith, considers advisable; and
(ii) any cost, loss, damage or expense incurred or suffered by Deal Capital in the settlement of such Third Party Liability or the conduct of any legal, administrative or other proceedings will be added to the amount of the Indemnity Claim.
Appears in 1 contract
Provisions Relating to Indemnity Claims. The following provisions will apply to any claim by the Indemnified Party or the Purchaser, whatever the case may be, Purchaser for indemnification by the Indemnifying Party or the Vendor, whatever the case may be, Shareholders pursuant to Sections section 8.1 and 8.2 hereof (hereinafter, in this section, called an "Indemnity Claim").
8.3.1. (a) Promptly after becoming aware of any matter that may give rise to an Indemnity Claim, the Indemnified Party or the Purchaser will provide to the Indemnifying Party or the Vendor Shareholders written notice of the Indemnity Claim specifying (to the extent that information is available) the factual basis for the Indemnity Claim and the amount of the Indemnity Claim or, if an amount is not then determinable, an estimate of the amount of the Indemnity Claim, if an estimate is feasible in the circumstances.
8.3.2. (b) If an Indemnity Claim relates to an alleged liability of Novagen to any other person (hereinafter, in this section, called a "Third Party Liability"), including without limitation any governmental or regulatory body or any taxing authority, which is of a nature such that the Indemnified Party or the Purchaser Novagen is required by applicable law to make a payment to a third party before the relevant procedure for challenging the existence or quantum of the alleged liability can be implemented or completed, then the Indemnified Party Novagen or the Purchaser may, notwithstanding the provisions of sections 8.3.3. paragraphs (c) and 8.3.4 (d) of this section, make such payment or cause Novagen to make such payment and forthwith demand reimbursement for such payment from the Indemnifying Party or the Vendor Shareholders in accordance with this Agreement; provided that, if the alleged Third Party Liability liability to the third party as finally determined on upon completion of settlement negotiations or related legal proceedings is less than the amount which is paid by the Indemnifying Party or the Vendor Shareholders in respect of the related Indemnity Claim, then the Indemnified Party Novagen or the Purchaser Purchaser, as the case may be, shall forthwith following the final determination pay to the Indemnifying Party or the Vendor Shareholders the amount by which the amount of the Third Party Liability liability as finally determined is less than the amount which is so paid by the Indemnifying Party or the VendorShareholders.
8.3.3. (c) The Indemnified Party or the Purchaser shall not negotiate, settle, compromise or pay (except in the case of payment of a judgementjudgment) any Third Party Liability as to which it proposes to assert an Indemnity Claim, except with the prior consent of the Indemnifying Party or the Vendor Shareholders (which consent shall not be unreasonably withheld or delayed), unless there is a reasonable possibility that such Third Party Liability may materially and adversely affect the Purchased Assets or Business, the Indemnified Party Condition of Novagen or the Purchaser, in which case the Indemnified Party or the Purchaser shall have the right, after notifying the Indemnifying Party or the VendorShareholders, to negotiate, settle, compromise or pay such Third Party Liability without prejudice to its rights of indemnification hereunder. The Indemnified Party or the Purchaser shall notify the Indemnifying Party or the Vendor within one (1) week of any third party claims being asserted.
8.3.4. (d) With respect to any Third Party Liability, provided the Indemnifying Party or the Vendor Shareholders first admit the Indemnified Party's or the Purchaser's right to indemnification for the amount of such Third Party Liability which may at any time be determined or settled, then, then in any legal, administrative or other proceedings in connection with the matters forming the basis of the Third Party Liability, the following procedures will apply:
8.3.4.1. (i) except as contemplated by subparagraph 8.3.4.3 (iii) of this sectionparagraph, the Indemnifying Party or the Vendor Shareholders will have the right to assume carriage of the compromise or settlement of the Third Party Liability and the conduct of any related legal, administrative or other proceedings, but the Indemnified Party or the Purchaser and Novagen shall have the right and shall be given the opportunity to participate in the defence of the Third Party Liability, to consult with the Indemnifying Party or the Vendor Shareholders in the settlement of the Third Party Liability and the conduct of related legal, administrative and other proceedings (including consultation with counsel) and to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Indemnifying Party or the Vendor Shareholders and the Indemnified Party or the Purchaser shall be retained by the Indemnifying Party or the VendorShareholders;
8.3.4.2. (ii) the Indemnifying Party or the Vendor Shareholders will co-operate with the Indemnified Party or the Purchaser in relation to the Third Party Liability, will keep it fully advised with respect thereto, will provide it with copies of all relevant documentation as it becomes available, will provide it with access to all records and files relating to the defence of the Third Party Liability and will meet with representatives of the Indemnified Party or the Purchaser at all reasonable times to discuss the Third Party Liability; , and
8.3.4.3. (iii) notwithstanding subparagraphs 8.3.4.1 (i) and 8(ii) of this paragraph, the Shareholders will not settle the Third Party Liability or conduct any legal, administrative or other proceedings in any manner which could, in the reasonable opinion of the Purchaser, have a material adverse effect on the Business, the Condition of Novagen or the Purchaser, except with the prior written consent of the Purchaser.
(e) If, with respect to any Third Party Liability, the Shareholders do not admit the Purchaser's right to indemnification or decline to assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability, then the following provisions will apply:
(i) the Purchaser, at its discretion, may assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability and may defend or settle the Third Party Liability on such terms as the Purchaser, acting in good faith, considers advisable, and
(ii) any cost, loss, damage or expense incurred or suffered by the Purchaser and Novagen in the settlement of such Third Party Liability or the conduct of any legal, administrative or other proceedings shall be added to the amount of the Indemnity Claim.
Appears in 1 contract
Provisions Relating to Indemnity Claims. The following provisions will apply to any claim by for indemnification pursuant to Sections 10.1 and 10.2 hereof (hereinafter, in this Section 10.3, called an “Indemnity Claim”).
10.5.1 In the event that a Party (the “Indemnified Party”) shall become aware of any matter in respect of which another Party (the “Indemnifying Party”) agreed to indemnify the Indemnified Party or the Purchaser, whatever the case may be, for indemnification by the Indemnifying Party or the Vendor, whatever the case may be, pursuant to Sections 8.1 and 8.2 (an "Indemnity Claim").
8.3.1. Promptly this Agreement, promptly after becoming aware of any matter that may give rise to an Indemnity Claim, the Indemnified Party or the Purchaser will provide to the Indemnifying Party or the Vendor written notice of the Indemnity Claim specifying (to the extent that information is available) the factual basis for the Indemnity Claim and the amount of the Indemnity Claim or, if an amount is not then determinable, an estimate of the amount of the Indemnity Claim, if an estimate is feasible in the circumstances.;
8.3.2. 10.5.2 If an Indemnity Claim relates to an alleged liability to any other person Person (in this Article 10, called a "“Third Party Liability"”), including without limitation any governmental or regulatory body Governmental Authority or any taxing authority, which is of a nature such that the Indemnified Party or the Purchaser is required by applicable law any Applicable Law to make a payment to a third party before the relevant procedure for challenging the existence or quantum of the alleged liability Third Party Liability can be implemented or completed, then the Indemnified Party or the Purchaser may, notwithstanding the provisions of sections 8.3.3. and 8.3.4 of this sectionSection 10.6, make such payment and forthwith demand reimbursement for such payment from the Indemnifying Party or the Vendor in accordance with this Agreement; provided that, if the alleged Third Party Liability as finally determined on upon completion of settlement negotiations or related legal proceedings is less than the amount which is paid by the Indemnifying Party or the Vendor in respect of the related Indemnity Claim, then the Indemnified Party or the Purchaser shall forthwith following the final determination pay to the Indemnifying Party or the Vendor the amount by which the amount of the Third Party Liability as finally determined is less than the amount which is so paid by the Indemnifying Party;
10.5.3 No Party or the Vendor.
8.3.3. The Indemnified Party or the Purchaser shall not negotiate, settle, compromise or pay (except in the case of payment of a judgementjudgment) any Third Party Liability as to which it proposes to or may assert an Indemnity Claim, except with the prior consent of the Indemnifying other Party or the Vendor (which consent shall not be unreasonably withheld or delayed), unless there is a reasonable possibility that such Third Party Liability may materially and adversely affect the Purchased Assets or the Indemnified Party or the Purchaser, in which case the Indemnified Party or the Purchaser shall have the right, after notifying the Indemnifying Party or the Vendor, to negotiate, settle, compromise or pay such Third Party Liability without prejudice to its rights of indemnification hereunder. The Indemnified Party or the Purchaser shall notify the Indemnifying Party or the Vendor within one (1) week of any third party claims being asserted.;
8.3.4. 10.5.4 With respect to any Third Party Liability, provided the Indemnifying Party or the Vendor first admit the Indemnified Party's or the Purchaser's right to indemnification for the amount of such Third Party Liability which may at any time be determined or settled, then, then in any legal, administrative or other proceedings in connection with the matters forming the basis of the Third Party Liability, the following procedures will apply:
8.3.4.1. 10.5.4.1 except as contemplated by subparagraph 8.3.4.3 of this sectionSubsection 10.5.4.3 below, the Indemnifying Party or the Vendor will have the right to assume carriage of the compromise or settlement of the Third Party Liability and the conduct of any related legal, administrative or other proceedings, but the Indemnified Party or the Purchaser shall have the right and shall be given the opportunity to participate in the defence of the Third Party Liability, to consult with the Indemnifying Party or the Vendor in the settlement of the Third Party Liability and the conduct of related legal, administrative and other proceedings (including consultation with counsel) Liability; and to disagree retain counsel to act on reasonable grounds with its behalf, provided that the selection fees and retention disbursements of counsel, in which case such counsel satisfactory to shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel or unless the Vendor named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party or the Purchaser shall be retained by and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the Vendoravailability of different defences);
8.3.4.2. 10.5.4.2 the Indemnifying Party or the Vendor will co-operate with the Indemnified Party or the Purchaser in relation to the Third Party Liability, will keep it fully advised with respect thereto, will provide it with copies of all relevant documentation as it becomes available, will provide it with access to all records and files relating to the defence of the Third Party Liability and will meet with representatives of the Indemnified Party or the Purchaser at all reasonable times to discuss the Third Party Liability; and
8.3.4.3. 10.5.4.3 notwithstanding subparagraphs 8.3.4.1 Subsections 10.5.4.1 and 810.5.4.2, the Indemnifying Party will not settle the Third Party Liability, except with the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed.
10.5.5 If, with respect to any Third Party Liability, the Indemnifying Party declines to assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability, then the following provisions will apply:
10.5.5.1 the Indemnified Party, shall assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability and defend or settle the Third Party Liability on such terms as the Indemnified Party, acting in good faith, considers advisable provided that, the Indemnifying Party shall not settle any Third Party Liability without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; and
10.5.5.2 the Indemnified Party and the Indemnifying Party shall co-operate fully with each other with respect to Third Party Claims, and shall keep each other fully advised with respect thereto shall provide each other with copies of all relevant documentation promptly as it becomes available and shall provide each other with access to all records and files relating to the defense of the Third Party Liability and will meet with each other’s representatives at all reasonable times to discuss the Third Party Liability.
Appears in 1 contract
Provisions Relating to Indemnity Claims. The following provisions will apply to any claim by the Indemnified Party or the Purchaser, whatever the case may be, Purchaser for indemnification by the Indemnifying Party or Corporation and the Vendor, whatever the case may be, Shareholder pursuant to Sections section 8.1 and 8.2 hereof (hereinafter, in this section, called an "Indemnity Claim").
8.3.1. (a) Promptly after becoming aware of any matter that may give rise to an Indemnity Claim, the Indemnified Party or the Purchaser will provide to the Indemnifying Party or Corporation and the Vendor Shareholder written notice of the Indemnity Claim specifying (to the extent that information is available) the factual basis for the Indemnity Claim and the amount of the Indemnity Claim or, if an amount is not then determinable, an estimate of the amount of the Indemnity Claim, if an estimate is feasible in the circumstances.
8.3.2. (b) If an Indemnity Claim relates to an alleged liability of the Corporation to any other person (hereinafter, in this section, called a "Third Party Liability"), including without limitation any governmental or regulatory body or any taxing authority, which is of a nature such that the Indemnified Party or the Purchaser Corporation is required by applicable law to make a payment to a third party before the relevant procedure for challenging the existence or quantum of the alleged liability can be implemented or completed, then the Indemnified Party Corporation or the Purchaser may, notwithstanding the provisions of sections 8.3.3. paragraphs (c) and 8.3.4 (d) of this section, make such payment or cause the Corporation to make such payment and forthwith demand reimbursement for such payment from the Indemnifying Party or Corporation and the Vendor Shareholder in accordance with this Agreement; provided that, if the alleged Third Party Liability liability to the third party as finally determined on upon completion of settlement negotiations or related legal proceedings is less than the amount which is paid by the Indemnifying Party or Corporation and the Vendor Shareholder in respect of the related Indemnity Claim, then the Indemnified Party Corporation or the Purchaser Purchaser, as the case may be, shall forthwith following the final determination pay to the Indemnifying Party or Corporation and the Vendor Shareholder the amount by which the amount of the Third Party Liability liability as finally determined is less than the amount which is so paid by the Indemnifying Party or Corporation and the VendorShareholder.
8.3.3. (c) The Indemnified Party or the Purchaser shall not negotiate, settle, compromise or pay (except in the case of payment of a judgement) any Third Party Liability as to which it proposes to assert an Indemnity Claim, except with the prior consent of the Indemnifying Party or Corporation and the Vendor Shareholder (which consent shall not be unreasonably withheld or delayed), unless there is a reasonable possibility that such Third Party Liability may materially and adversely affect the Purchased Assets or Business, the Indemnified Party Condition of the Corporation or the Purchaser, in which case the Indemnified Party or the Purchaser shall have the right, after notifying the Indemnifying Party or Corporation and the VendorShareholder, to negotiate, settle, compromise or pay such Third Party Liability without prejudice to its rights of indemnification hereunder. The Indemnified Party or the Purchaser shall notify the Indemnifying Party or the Vendor within one (1) week of any third party claims being asserted.
8.3.4. (d) With respect to any Third Party Liability, provided the Indemnifying Party or Corporation and the Vendor Shareholder first admit the Indemnified Party's or the Purchaser's right to indemnification for the amount of such Third Party Liability which may at any time be determined or settled, then, then in any legal, administrative or other proceedings in connection with the matters forming the basis of the Third Party Liability, the following procedures will apply:
8.3.4.1. (i) except as contemplated by subparagraph 8.3.4.3 (iii) of this sectionparagraph, the Indemnifying Party or Corporation and the Vendor Shareholder will have the right to assume carriage of the compromise or settlement of the Third Party Liability and the conduct of any related legal, administrative or other proceedings, but the Indemnified Party or Purchaser and the Purchaser Corporation shall have the right and shall be given the opportunity to participate in the defence of the Third Party Liability, to consult with the Indemnifying Party or Corporation and the Vendor Shareholder in the settlement of the Third Party Liability and the conduct of related legal, administrative and other proceedings (including consultation with counsel) and to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Indemnifying Party or Corporation, the Vendor Shareholder and the Indemnified Party or the Purchaser shall be retained by the Indemnifying Party or Corporation and the VendorShareholder;
8.3.4.2. (ii) the Indemnifying Party or Corporation and the Vendor Shareholder will co-operate with the Indemnified Party or the Purchaser in relation to the Third Party Liability, will keep it fully advised with respect thereto, will provide it with copies of all relevant documentation as it becomes available, will provide it with access to all records and files relating to the defence of the Third Party Liability and will meet with representatives of the Indemnified Party or the Purchaser at all reasonable times to discuss the Third Party Liability; , and
8.3.4.3. (iii) notwithstanding subparagraphs 8.3.4.1 (i) and 8(ii) of this paragraph, the Corporation and the Shareholder will not settle the Third Party Liability or conduct any legal, administrative or other proceedings in any manner which could, in the reasonable opinion of the Purchaser, have a material adverse effect on the Business, the Condition of the Corporation or the Purchaser, except with the prior written consent of the Purchaser.
(e) If, with respect to any Third Party Liability, the Corporation and the Shareholder do not admit the Purchaser's right to indemnification or decline to assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability, then the following provisions will apply:
(i) the Purchaser, at its discretion, may assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability and may defend or settle the Third Party Liability on such terms as the Purchaser, acting in good faith, considers advisable, and
(ii) any cost, loss, damage or expense incurred or suffered by the Purchaser and the Corporation in the settlement of such Third Party Liability or the conduct of any legal, administrative or other proceedings shall be added to the amount of the Indemnity Claim.
Appears in 1 contract
Samples: Acquisition Agreement (Jupiter Global Holdings Corp)
Provisions Relating to Indemnity Claims. The following provisions will apply to any claim by the Indemnified Party or the Purchaser, whatever the case may be, for indemnification by the Indemnifying Party or the Vendor, whatever the case may be, pursuant to Sections 8.1 and 8.2 Section 6.1 hereof (an "Indemnity Claim").
8.3.1. (a) Promptly after becoming aware of any matter that may give rise to an Indemnity Claim, the Indemnified Party either or the Purchaser both of NBTel and 506 will provide to the Indemnifying Party or the Vendor imagic written notice of the Indemnity Claim specifying (to the extent that information is available) the factual basis for the Indemnity Claim and the amount of the Indemnity Claim or, if an amount is not then determinable, an estimate of the amount of the Indemnity Claim, if an estimate is feasible in the circumstances.
8.3.2. (b) If an Indemnity Claim relates to an alleged liability to any person other person than NBTel or 506 (a "Third Party Liability"), including without limitation any governmental or regulatory body or any taxing authority, which is of a nature such that the Indemnified Party either or the Purchaser is both of NBTel and 506 are required by applicable law to make a payment to a third party before the relevant procedure for challenging the existence or quantum of the alleged liability can be implemented or completed, then the Indemnified Party or the Purchaser NBTel and 506 may, upon mutual agreement of NBTel and 506, and notwithstanding the provisions of sections 8.3.3. the paragraphs (c) and 8.3.4 (d) of this section, make such payment and forthwith demand reimbursement for such payment from the Indemnifying Party or the Vendor imagic in accordance with this Agreementagreement; provided that, if the alleged Third Party Liability as finally determined on completion of settlement negotiations or related legal proceedings is less than the amount which is paid by the Indemnifying Party or the Vendor imagic in respect of the related Indemnity Claim, then the Indemnified Party or the Purchaser NBTel and 506 shall forthwith following the final determination pay to the Indemnifying Party or the Vendor imagic the amount by which the amount of the Third Party Liability as finally determined is less than the amount which is so paid by the Indemnifying Party or the Vendorimagic.
8.3.3. The Indemnified Party or the Purchaser (c) NB Tel and 506 shall not negotiate, settle, compromise or pay (except in the case of payment of a judgementjudgment) any Third Party Liability as to which it proposes to assert an Indemnity Claim, except with the prior consent of the Indemnifying Party or the Vendor imagic (which consent shall not be unreasonably withheld or delayed), unless there is a reasonable possibility that such Third Party Liability may materially and adversely affect the Purchased Assets or the Indemnified Party or the Purchasereither of NBTel and 506, in which case the Indemnified Party or the Purchaser shall NBTel and 506 shall, upon mutual agreement of NBTel and 506 acting reasonably and having regard to each other's business and reputation, have the right, after notifying the Indemnifying Party or the Vendorimagic, to negotiate, settle, compromise or pay such Third Party Liability without prejudice to its rights of indemnification hereunder. The Indemnified Party or the Purchaser shall notify the Indemnifying Party or the Vendor within one (1) week of any third party claims being asserted.
8.3.4. (d) With respect to any Third Party Liability, provided the Indemnifying Party or the Vendor imagic first admit the Indemnified Party's or the Purchaseradmits NBTel and 506's right to indemnification for the amount of such Third Party Liability which may at any time be determined or settled, then, in any legal, administrative or other proceedings in connection with the matters forming the basis of the Third Party Liability, the following procedures will apply:
8.3.4.1. (i) except as contemplated by subparagraph 8.3.4.3 (iii) of this sectionparagraph, the Indemnifying Party or the Vendor imagic will have the right to assume carriage of the compromise or settlement of the Third Party Liability and the conduct of any related legal, administrative or other proceedings, but subject always to the Indemnified Party mutual agreement of NBTel and 506 as to imagic's carriage, compromise or conduct thereof and without limiting the Purchaser shall foregoing, NBTel and 506 shall, upon mutual agreement of NBTel and 506, have the right and shall be given the opportunity to participate in the defence of the Third Party Liability, to consult with the Indemnifying Party or the Vendor imagic in the settlement of the Third Party Liability and the conduct of related legal, administrative and other proceedings (including consultation with counsel) and to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to all of the Indemnifying Party or the Vendor and the Indemnified Party or the Purchaser Parties shall be retained by the Indemnifying Party or the Vendorimagic;
8.3.4.2. the Indemnifying Party or the Vendor (ii) imagic will co-operate with the Indemnified Party or the Purchaser NBTel and 506 in relation to the Third Party Liability, will keep it NBTel and 506 fully advised with respect thereto, will provide it NBTel and 506 with copies of all relevant documentation as it becomes available, will provide it NBTel and 506 with access to all records and files relating to the defence of the Third Party Liability and will meet with representatives of the Indemnified Party or the Purchaser NBTel and 506 at all reasonable times to discuss the Third Party Liability; and
8.3.4.3. (iii) notwithstanding subparagraphs 8.3.4.1 (i) and 8(ii) of this paragraph, imagic will not settle the Third Party Liability or conduct any legal, administrative or other proceedings in any manner in which there is a reasonable possibility that such settlement may materially and adversely affect either of NBTel and 506, except with the prior written consent of each of NBTel and 506 acting reasonably and having regard to each other's business and reputation.
(e) If, with respect to any Third Party Liability, imagic does not admit NBTel and 506's right to indemnification or declines to assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability, then the following provisions will apply:
(i) NBTel and 506, upon mutual agreement of NBTel and 506 and at their discretion, may assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability and may defend or settle the Third Party Liability on such terms as NBTel and 506, acting in good faith, consider advisable; and
(ii) any cost, loss, damage or expense incurred or suffered by NBTel and 506 in the settlement or defence of such Third Party Liability or the conduct of any legal, administrative or other proceedings shall be added to the amount of the Indemnity Claim.
Appears in 1 contract
Samples: Development Agreement (Imagictv Inc)
Provisions Relating to Indemnity Claims. The following provisions will apply to any claim by the either NHL, the Shareholders or Sonoma (the "Indemnified Party or the Purchaser, whatever the case may be, Party") for indemnification by the others (the "Indemnifying Party Party") pursuant to section 14.1, 14.2 or the Vendor14.3 hereof, whatever as the case may bebe (hereinafter, pursuant to Sections 8.1 and 8.2 (in this section, called an "Indemnity Claim").
8.3.1. (a) Promptly after becoming aware of any matter that may give rise to an Indemnity Claim, the Indemnified Party or the Purchaser will provide to the Indemnifying Party or the Vendor written notice of the Indemnity Claim specifying (to the extent that information is available) the factual basis for the Indemnity Claim and the amount of the Indemnity Claim or, if an amount is not then determinable, an estimate of the amount of the Indemnity Claim, if an estimate is feasible in the circumstances.
8.3.2. (b) If an Indemnity Claim relates to an alleged liability to any other person (hereinafter, in this section, called a "Third Party Liability"), including without limitation any governmental or regulatory body or any taxing authority, which is of a nature such that the Indemnified Party or the Purchaser is required by applicable law to make a payment to a third party before the relevant procedure for challenging the existence or quantum of the alleged liability can be implemented or completed, then the Indemnified Party or the Purchaser may, notwithstanding the provisions of sections 8.3.3. paragraphs (c) and 8.3.4 (d) of this section, make such payment and forthwith demand reimbursement for such payment from the Indemnifying Party or the Vendor in accordance with this Agreement; provided that, if the alleged Third Party Liability liability to the third party as finally determined on upon completion of settlement negotiations or related legal proceedings is less than the amount which is paid by the Indemnifying Party or the Vendor in respect of the related Indemnity Claim, then the Indemnified Party or the Purchaser shall forthwith following the final determination pay to the Indemnifying Party or the Vendor the amount by which the amount of the Third Party Liability liability as finally determined is less than the amount which is so paid by the Indemnifying Party or the VendorParty.
8.3.3. (c) The Indemnified Party or the Purchaser shall not negotiate, settle, compromise or pay (except in the case of payment of a judgementjudgment) any Third Party Liability as to which it proposes to assert an Indemnity Claim, except with the prior consent of the Indemnifying Party or the Vendor (which consent shall not be unreasonably withheld or delayed), unless there is a reasonable possibility that such Third Party Liability may materially and adversely affect the Purchased Assets or condition of the Indemnified Party or the PurchaserParty, in which case the Indemnified Party or the Purchaser shall have the right, after notifying the Indemnifying Party or the VendorParty, to negotiate, settle, compromise or pay such Third Party Liability without prejudice to its rights of indemnification hereunder. The Indemnified Party or the Purchaser shall notify the Indemnifying Party or the Vendor within one (1) week of any third party claims being asserted.
8.3.4. (d) With respect to any Third Party Liability, provided the Indemnifying Party or the Vendor first admit admits the Indemnified Party's or the Purchaser's right to indemnification for the amount of such Third Party Liability which may at any time be determined or settled, then, then in any legal, administrative or other proceedings in connection with the matters forming the basis of the Third Party Liability, the following procedures will apply:
8.3.4.1. (i) except as contemplated by subparagraph 8.3.4.3 of this section(iii) below, the Indemnifying Party or the Vendor will have the right to assume carriage of the compromise or settlement of the Third Party Liability and the conduct of any related legal, administrative or other proceedings, but the Indemnified Party or the Purchaser shall have the right and shall be given the opportunity to participate in the defence of the Third Party Liability, to consult with the Indemnifying Party or the Vendor in the settlement of the Third Party Liability and the conduct of related legal, administrative and other proceedings (including consultation with counsel) and to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Indemnifying Party or the Vendor and the Indemnified Party or the Purchaser shall be retained by the Indemnifying Party or the VendorParty;
8.3.4.2. (ii) the Indemnifying Party or the Vendor will co-operate with the Indemnified Party or the Purchaser in relation to the Third Party Liability, will keep it fully advised with respect thereto, will provide it with copies of all relevant documentation as it becomes available, will provide it with access to all records and files relating to the defence of the Third Party Liability and will meet with representatives of the Indemnified Party or the Purchaser at all reasonable times to discuss the Third Party Liability; , and
8.3.4.3. (iii) notwithstanding subparagraphs 8.3.4.1 (i) and 8(ii), the Indemnifying Party will not settle the Third Party Liability or conduct any legal, administrative or other proceedings in any manner which could, in the reasonable opinion of the Indemnified Party, have a material adverse affect on the condition of the Indemnified Party, except with the prior written consent of the Indemnified Party.
(e) If, with respect to any Third Party Liability, the Indemnifying Party does not admit the Indemnified Party's right to indemnification or decline to assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability, then the following provisions will apply:
(i) the Indemnified Party, at its discretion, may assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability and may defend or settle the Third Party Liability on such terms as the Indemnified Party, acting in good faith, considers advisable, and
(ii) any cost, lost, damage or expense incurred or suffered by the Indemnified Party in the settlement of such Third Party Liability or the conduct of any legal, administrative or other proceedings shall be added to the amount of the Indemnity Claim.
Appears in 1 contract
Samples: Securities Exchange Agreement
Provisions Relating to Indemnity Claims. The following provisions will apply to any claim by either the Indemnified Party Vendor or the Purchaser, whatever Purchaser (the case may be, "Indemnified Party") for indemnification by the other (the "Indemnifying Party Party") pursuant to section 8.1 or the Vendor8.2 hereof, whatever as the case may bebe (hereinafter, pursuant to Sections 8.1 and 8.2 (in this section, called an "Indemnity Claim").
8.3.1. (a) Promptly after becoming aware of any matter that may give rise to an Indemnity Claim, the Indemnified Party or the Purchaser will provide to the Indemnifying Party or the Vendor written notice of the Indemnity Claim specifying (to the extent that information is available) the factual basis for the Indemnity Claim and the amount of the Indemnity Claim or, if an amount is not then determinable, an estimate of the amount of the Indemnity Claim, if an estimate is feasible in the circumstances.
8.3.2. (b) If an Indemnity Claim relates to an alleged liability to any other person (hereinafter, in this section, called a "Third Party Liability"), including without limitation any governmental or regulatory body or any taxing authority, which is of a nature such that the Indemnified Party or the Purchaser is required by applicable law to make a payment to a third party before the relevant procedure for challenging the existence or quantum of the alleged liability can be implemented or completed, then the Indemnified Party or the Purchaser may, notwithstanding the provisions of sections 8.3.3. paragraphs (c) and 8.3.4 (d) of this section, make such payment and forthwith demand reimbursement for such payment from the Indemnifying Party or the Vendor in accordance with this Agreement; provided that, if the alleged Third Party Liability liability to the third party as finally determined on upon completion of settlement negotiations or related legal proceedings is less than the amount which is paid by the Indemnifying Party or the Vendor in respect of the related Indemnity Claim, then the Indemnified Party or the Purchaser shall forthwith following the final determination pay to the Indemnifying Party or the Vendor the amount by which the amount of the Third Party Liability liability as finally determined is less than the amount which is so paid by the Indemnifying Party or the VendorParty.
8.3.3. (c) The Indemnified Party or the Purchaser shall not negotiate, settle, compromise or pay (except in the case of payment of a judgementjudgment) any Third Party Liability as to which it proposes to assert an Indemnity Claim, except with the prior consent of the Indemnifying Party or the Vendor (which consent shall not be unreasonably withheld or delayed), unless there is a reasonable possibility that such Third Party Liability may materially and adversely affect the condition of the Purchased Assets or the Indemnified Party or the PurchaserParty, in which case the Indemnified Party or the Purchaser shall have the right, after notifying the Indemnifying Party or the VendorParty, to negotiate, settle, compromise or pay such Third Party Liability without prejudice to its rights of indemnification hereunder. The Indemnified Party or the Purchaser shall notify the Indemnifying Party or the Vendor within one (1) week of any third party claims being asserted.
8.3.4. (d) With respect to any Third Party Liability, provided the Indemnifying Party or the Vendor first admit admits the Indemnified Party's or the Purchaser's right to indemnification for the amount of such Third Party Liability which may at any time be determined or settled, then, then in any legal, administrative or other proceedings in connection with the matters forming the basis of the Third Party Liability, the following procedures will apply:
8.3.4.1. (i) except as contemplated by subparagraph 8.3.4.3 of this section(iii) below, the Indemnifying Party or the Vendor will have the right to assume carriage of the compromise or settlement of the Third Party Liability and the conduct of any related legal, administrative or other proceedings, but the Indemnified Party or the Purchaser shall have the right and shall be given the opportunity to participate in the defence of the Third Party Liability, to consult with the Indemnifying Party or the Vendor in the settlement of the Third Party Liability and the conduct of related legal, administrative and other proceedings (including consultation with counsel) and to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Indemnifying Party or the Vendor and the Indemnified Party or the Purchaser shall be retained by the Indemnifying Party or the VendorParty;
8.3.4.2. (ii) the Indemnifying Party or the Vendor will co-operate with the Indemnified Party or the Purchaser in relation to the Third Party Liability, will keep it fully advised with respect thereto, will provide it with copies of all relevant documentation as it becomes available, will provide it with access to all records and files relating to the defence of the Third Party Liability and will meet with representatives of the Indemnified Party or the Purchaser at all reasonable times to discuss the Third Party Liability; , and
8.3.4.3. (iii) notwithstanding subparagraphs 8.3.4.1 (i) and 8(ii), the Indemnifying Party will not settle the Third Party Liability or conduct any legal, administrative or other proceedings in any manner which could, in the reasonable opinion of the Indemnified Party, have a material adverse affect on the condition of the Purchased Assets or the Indemnified Party, except with the prior written consent of the Indemnified Party.
(e) If, with respect to any Third Party Liability, the Indemnifying Party does not admit the Indemnified Party's right to indemnification or declines to assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability, then the following provisions will apply:
(i) the Indemnified Party, at its discretion, may assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability and may defend or settle the Third Party Liability on such terms as the Indemnified Party, acting in good faith, considers advisable, and
(ii) any cost, lost, damage or expense incurred or suffered by the Indemnified Party in the settlement of such Third Party Liability or the conduct of any legal, administrative or other proceedings shall be added to the amount of the Indemnity Claim.
Appears in 1 contract
Samples: Asset Purchase Agreement
Provisions Relating to Indemnity Claims. The following provisions will apply to any claim by the Indemnified Party either the Optionor or the Purchaser, whatever Optionee (the case may be, "Indemnified Party") for indemnification by the other (the "Indemnifying Party Party") pursuant to section 7.1 or the Vendor7.2 hereof, whatever as the case may bebe (hereinafter, pursuant to Sections 8.1 and 8.2 (in this section, called an "Indemnity Claim").
8.3.1. (a) Promptly after becoming aware of any matter that may give rise to an Indemnity Claim, the Indemnified Party or the Purchaser will provide to the Indemnifying Party or the Vendor written notice of the Indemnity Claim specifying (to the extent that information is available) the factual basis for the Indemnity Claim and the amount of the Indemnity Claim or, if an amount is not then determinable, an estimate of the amount of the Indemnity Claim, if an estimate is feasible in the circumstances.
8.3.2. (b) If an Indemnity Claim relates to an alleged liability to any other person (hereinafter, in this section, called a "Third Party Liability"), including without limitation any governmental or regulatory body or any taxing authority, which is of a nature such that the Indemnified Party or the Purchaser is required by applicable law to make a payment to a third party before the relevant procedure for challenging the existence or quantum of the alleged liability can be implemented or completed, then the Indemnified Party or the Purchaser may, notwithstanding the provisions of sections 8.3.3. paragraphs (c) and 8.3.4 (d) of this section, make such payment and forthwith demand reimbursement for such payment from the Indemnifying Party or the Vendor in accordance with this Agreement; provided that, if the alleged Third Party Liability liability to the third party as finally determined on upon completion of settlement negotiations or related legal proceedings is less than the amount which is paid by the Indemnifying Party or the Vendor in respect of the related Indemnity Claim, then the Indemnified Party or the Purchaser shall forthwith following the final determination pay to the Indemnifying Party or the Vendor the amount by which the amount of the Third Party Liability liability as finally determined is less than the amount which is so paid by the Indemnifying Party or the VendorParty.
8.3.3. (c) The Indemnified Party or the Purchaser shall not negotiate, settle, compromise or pay (except in the case of payment of a judgementjudgment) any Third Party Liability as to which it proposes to assert an Indemnity Claim, except with the prior consent of the Indemnifying Party or the Vendor (which consent shall not be unreasonably withheld or delayed), unless there is a reasonable possibility that such Third Party Liability may materially and adversely affect the Purchased condition of the Optioned Assets or the Indemnified Party or the PurchaserParty, in which case the Indemnified Party or the Purchaser shall have the right, after notifying the Indemnifying Party or the VendorParty, to negotiate, settle, compromise or pay such Third Party Liability without prejudice to its rights of indemnification hereunder. The Indemnified Party or the Purchaser shall notify the Indemnifying Party or the Vendor within one (1) week of any third party claims being asserted.
8.3.4. (d) With respect to any Third Party Liability, provided the Indemnifying Party or the Vendor first admit admits the Indemnified Party's or the Purchaser's right to indemnification for the amount of such Third Party Liability which may at any time be determined or settled, then, then in any legal, administrative or other proceedings in connection with the matters forming the basis of the Third Party Liability, the following procedures will apply:
8.3.4.1. (i) except as contemplated by subparagraph 8.3.4.3 of this section(iii) below, the Indemnifying Party or the Vendor will have the right to assume carriage of the compromise or settlement of the Third Party Liability and the conduct of any related legal, administrative or other proceedings, but the Indemnified Party or the Purchaser shall have the right and shall be given the opportunity to participate in the defence of the Third Party Liability, to consult with the Indemnifying Party or the Vendor in the settlement of the Third Party Liability and the conduct of related legal, administrative and other proceedings (including consultation with counsel) and to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Indemnifying Party or the Vendor and the Indemnified Party or the Purchaser shall be retained by the Indemnifying Party or the VendorParty;
8.3.4.2. (ii) the Indemnifying Party or the Vendor will co-operate with the Indemnified Party or the Purchaser in relation to the Third Party Liability, will keep it fully advised with respect thereto, will provide it with copies of all relevant documentation as it becomes available, will provide it with access to all records and files relating to the defence of the Third Party Liability and will meet with representatives of the Indemnified Party or the Purchaser at all reasonable times to discuss the Third Party Liability; , and
8.3.4.3. (iii) notwithstanding subparagraphs 8.3.4.1 (i) and 8(ii), the Indemnifying Party will not settle the Third Party Liability or conduct any legal, administrative or other proceedings in any manner which could, in the reasonable opinion of the Indemnified Party, have a material adverse affect on the condition of the Optioned Assets or the Indemnified Party, except with the prior written consent of the Indemnified Party.
(e) If, with respect to any Third Party Liability, the Indemnifying Party does not admit the Indemnified Party's right to indemnification or decline to assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability, then the following provisions will apply:
(i) the Indemnified Party, at its discretion, may assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability and may defend or settle the Third Party Liability on such terms as the Indemnified Party, acting in good faith, considers advisable, and
(ii) any cost, lost, damage or expense incurred or suffered by the Indemnified Party in the settlement of such Third Party Liability or the conduct of any legal, administrative or other proceedings shall be added to the amount of the Indemnity Claim.
Appears in 1 contract
Provisions Relating to Indemnity Claims. The following provisions will apply to any claim by either the Indemnified Party Optionor or the Purchaser, whatever Optionee (the case may be, "Indemnified Party") for indemnification by the other (the "Indemnifying Party Party") pursuant to section 7.1 or the Vendor7.2 hereof, whatever as the case may bebe (hereinafter, pursuant to Sections 8.1 and 8.2 (in this section, called an "Indemnity Claim").
8.3.1. (a) Promptly after becoming aware of any matter that may give rise to an Indemnity Claim, the Indemnified Party or the Purchaser will provide to the Indemnifying Party or the Vendor written notice of the Indemnity Claim specifying (to the extent that information is available) the factual basis for the Indemnity Claim and the amount of the Indemnity Claim or, if an amount is not then determinable, an estimate of the amount of the Indemnity Claim, if an estimate is feasible in the circumstances.
8.3.2. (b) If an Indemnity Claim relates to an alleged liability to any other person (hereinafter, in this section, called a "Third Party Liability"), including without limitation any governmental or regulatory body or any taxing authority, which is of a nature such that the Indemnified Party or the Purchaser is required by applicable law to make a payment to a third party before the relevant procedure for challenging the existence or quantum of the alleged liability can be implemented or completed, then the Indemnified Party or the Purchaser may, notwithstanding the provisions of sections 8.3.3. paragraphs (c) and 8.3.4 (d) of this section, make such payment and forthwith demand reimbursement for such payment from the Indemnifying Party or the Vendor in accordance with this Agreement; provided that, if the alleged Third Party Liability liability to the third party as finally determined on upon completion of settlement negotiations or related legal proceedings is less than the amount which is paid by the Indemnifying Party or the Vendor in respect of the related Indemnity Claim, then the Indemnified Party or the Purchaser shall forthwith following the final determination pay to the Indemnifying Party or the Vendor the amount by which the amount of the Third Party Liability liability as finally determined is less than the amount which is so paid by the Indemnifying Party or the VendorParty.
8.3.3. (c) The Indemnified Party or the Purchaser shall not negotiate, settle, compromise or pay (except in the case of payment of a judgementjudgment) any Third Party Liability as to which it proposes to assert an Indemnity Claim, except with the prior consent of the Indemnifying Party or the Vendor (which consent shall not be unreasonably withheld or delayed), unless there is a reasonable possibility that such Third Party Liability may materially and adversely affect the Purchased condition of the Optioned Assets or the Indemnified Party or the PurchaserParty, in which case the Indemnified Party or the Purchaser shall have the right, after notifying the Indemnifying Party or the VendorParty, to negotiate, settle, compromise or pay such Third Party Liability without prejudice to its rights of indemnification hereunder. The Indemnified Party or the Purchaser shall notify the Indemnifying Party or the Vendor within one (1) week of any third party claims being asserted.
8.3.4. (d) With respect to any Third Party Liability, provided the Indemnifying Party or the Vendor first admit admits the Indemnified Party's or the Purchaser's right to indemnification for the amount of such Third Party Liability which may at any time be determined or settled, then, then in any legal, administrative or other proceedings in connection with the matters forming the basis of the Third Party Liability, the following procedures will apply:
8.3.4.1. (i) except as contemplated by subparagraph 8.3.4.3 of this section(iii) below, the Indemnifying Party or the Vendor will have the right to assume carriage of the compromise or settlement of the Third Party Liability and the conduct of any related legal, administrative or other proceedings, but the Indemnified Party or the Purchaser shall have the right and shall be given the opportunity to participate in the defence of the Third Party Liability, to consult with the Indemnifying Party or the Vendor in the settlement of the Third Party Liability and the conduct of related legal, administrative and other proceedings (including consultation with counsel) and to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Indemnifying Party or the Vendor and the Indemnified Party or the Purchaser shall be retained by the Indemnifying Party or the VendorParty;
8.3.4.2. (ii) the Indemnifying Party or the Vendor will co-operate with the Indemnified Party or the Purchaser in relation to the Third Party Liability, will keep it fully advised with respect thereto, will provide it with copies of all relevant documentation as it becomes available, will provide it with access to all records and files relating to the defence of the Third Party Liability and will meet with representatives of the Indemnified Party or the Purchaser at all reasonable times to discuss the Third Party Liability; , and
8.3.4.3. (iii) notwithstanding subparagraphs 8.3.4.1 (i) and 8(ii), the Indemnifying Party will not settle the Third Party Liability or conduct any legal, administrative or other proceedings in any manner which could, in the reasonable opinion of the Indemnified Party, have a material adverse affect on the condition of the Optioned Assets or the Indemnified Party, except with the prior written consent of the Indemnified Party.
(e) If, with respect to any Third Party Liability, the Indemnifying Party does not admit the Indemnified Party's right to indemnification or decline to assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability, then the following provisions will apply:
(i) the Indemnified Party, at its discretion, may assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability and may defend or settle the Third Party Liability on such terms as the Indemnified Party, acting in good faith, considers advisable, and
(ii) any cost, lost, damage or expense incurred or suffered by the Indemnified Party in the settlement of such Third Party Liability or the conduct of any legal, administrative or other proceedings shall be added to the amount of the Indemnity Claim.
Appears in 1 contract
Provisions Relating to Indemnity Claims. The Subject to Section 4.2(7), the following provisions will apply to any claim by the Indemnified Party YM or the Purchasera Major Shareholder, whatever as the case may bebe (each an "Indemnified Party"), for indemnification by the Indemnifying Party Major Shareholders or the VendorYM, whatever as the case may bebe (each an "Indemnifying Party"), pursuant to Sections 8.1 7.3 and 8.2 7.4 (hereinafter, in this section, an "Indemnity Claim").
8.3.1. (1) Promptly after becoming aware of any matter that may give rise to an Indemnity Claim, the Indemnified Party or the Purchaser will provide to the Indemnifying Party or the Vendor written notice of the Indemnity Claim specifying (to the extent that information is available) the factual basis for the Indemnity Claim and the amount of the Indemnity Claim or, if an amount is not then determinable, an estimate of the amount of the Indemnity Claim, if an estimate is feasible in the circumstances.
8.3.2. (2) The Indemnified Party shall not, without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder unless such settlement, compromise or consent includes an unconditional release of the Indemnified Party from all liability arising out of such claim, action, suit or proceeding.
(3) Notwithstanding the foregoing, an Indemnifying Party shall not be liable for the settlement of any claim or action in respect of which indemnity may be sought hereunder that is effected without its written consent, which consent shall not be unreasonably withheld.
(4) An Indemnifying Party shall be entitled (but not required) to assume the defence of any suit brought to enforce a claim against the Indemnified Party; provided, however, that the defence shall be through legal counsel acceptable to the Indemnified Party and the Indemnifying Party, acting reasonably, and that no settlement may be made by the Indemnified Party or the Indemnifying Party without the prior written consent of the other.
(5) In any such claim, the Indemnified Party shall have the right to retain other counsel to act on the Indemnified Party's behalf, provided that the fees and disbursements of such other counsel shall be paid by the Indemnified Party, unless (i) the Indemnified Party and the Indemnifying Party mutually agree to retain such other counsel or (ii) the named parties to any such claim (including any third or implicated party) include both the Indemnified Party on the one hand and the Indemnifying Party, on the other hand, and the representation of the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to actual or potential conflicting interests, in which event such fees and disbursements shall be paid by the Indemnifying Party to the extent that they have been reasonably incurred.
(6) If an Indemnity Claim relates to an alleged liability of the Corporation to any other person (hereinafter in this section, a "Third Party Liability"), including without limitation any governmental or regulatory body or any taxing authority, which is of a nature such that the Indemnified Party or the Purchaser Corporation is required by applicable law to make a payment to a third party before the relevant procedure for challenging the existence or quantum of the alleged liability can be implemented or completed, then the Indemnified Party Corporation or the Purchaser YM may, notwithstanding the provisions of sections 8.3.3. paragraphs (7) and 8.3.4 (8) of this sectionSection 7.5, make such payment or cause the Corporation to make such payment and forthwith demand reimbursement for such payment from the Indemnifying Party or the Vendor Major Shareholders in accordance with this Agreement; provided that, if the alleged Third Party Liability liability to the third party as finally determined on upon completion of settlement negotiations or related legal proceedings is less than the amount which is paid by the Indemnifying Party or the Vendor Major Shareholders in respect of the related Indemnity Claim, then the Indemnified Party Corporation or YM, as the Purchaser case may be, shall forthwith following the final determination pay to the Indemnifying Party or the Vendor Major Shareholders the amount by which the amount of the Third Party Liability liability as finally determined is less than the amount which is so paid by the Indemnifying Party or the VendorMajor Shareholders.
8.3.3. The Indemnified Party or the Purchaser (7) YM shall not negotiate, settle, compromise or pay (except in the case of payment of a judgement) any Third Party Liability as to which it proposes to assert an Indemnity Claim, except with the prior consent of the Indemnifying Party or the Vendor Major Shareholders (which consent shall not be unreasonably withheld or delayed), unless there is a reasonable possibility that such Third Party Liability may materially and adversely affect the Purchased Assets Business, the Condition of the Corporation or the Indemnified Party or the PurchaserYM, in which case the Indemnified Party or the Purchaser YM shall have the right, after notifying the Indemnifying Party or the VendorMajor Shareholders, to negotiate, settle, compromise or pay such Third Party Liability without prejudice to its rights of indemnification hereunder. The Indemnified Party or the Purchaser shall notify the Indemnifying Party or the Vendor within one (1) week of any third party claims being asserted.
8.3.4. (8) With respect to any Third Party Liability, provided the Indemnifying Party or the Vendor Major Shareholders first admit the Indemnified Party's or the PurchaserYM's right to indemnification for the amount of such Third Party Liability which may at any time be determined or settled, then, then in any legal, administrative or other proceedings in connection with the matters forming the basis of the Third Party Liability, the following procedures will apply:
8.3.4.1. (a) except as contemplated by subparagraph 8.3.4.3 (iii) of this sectionparagraph, the Indemnifying Party or the Vendor Major Shareholders will have the right to assume carriage of the compromise or settlement of the Third Party Liability and the conduct of any related legal, administrative or other proceedings, but YM and the Indemnified Party or the Purchaser Corporation shall have the right and shall be given the opportunity to participate in the defence of the Third Party Liability, to consult with the Indemnifying Party or the Vendor Major Shareholders in the settlement of the Third Party Liability and the conduct of related legal, administrative and other proceedings (including consultation with counsel) and to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Indemnifying Party or the Vendor Major Shareholders, and the Indemnified Party or the Purchaser YM shall be retained by the Indemnifying Party or the VendorMajor Shareholders;
8.3.4.2. (b) the Indemnifying Party or the Vendor Major Shareholders will co-operate with the Indemnified Party or the Purchaser YM in relation to the Third Party Liability, will keep it fully advised informed with respect thereto, will provide it with copies of all relevant documentation as it becomes available, will provide it with access to all records and files relating to the defence of the Third Party Liability and will meet with representatives of the Indemnified Party or the Purchaser YM at all reasonable times to discuss the Third Party Liability; and
8.3.4.3. (c) notwithstanding subparagraphs 8.3.4.1 (i) and 8(ii) of this paragraph, the Major Shareholders will not settle the Third Party Liability or conduct any legal, administrative or other proceedings in any manner which could, in the reasonable opinion of YM, have a material adverse affect on the Business or YM, except with the prior written consent of YM.
(9) If, with respect to any Third Party Liability, the Major Shareholders do not admit YM's right to indemnification or decline to assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability, then the following provisions will apply:
(a) YM, at its discretion, may assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability and may defend or settle the Third Party Liability on such terms as YM, acting in good faith, considers advisable; and
(b) any cost, loss, damage or expense incurred or suffered by YM and the Corporation in the settlement of such Third Party Liability or the conduct of any legal, administrative or other proceedings shall be added to the amount of the Indemnity Claim.
Appears in 1 contract
Provisions Relating to Indemnity Claims. The following provisions will apply to any claim by the Indemnified Party or the Purchaser, whatever the case may be, Deal Capital for indemnification by the Indemnifying Party or the Vendor, whatever the case may be, Subsidiaries and Sonora Gold pursuant to Sections Section 8.1 and 8.2 or otherwise as outlined herein (in this Section, an "“Indemnity Claim").”):
8.3.1. (a) Promptly after becoming aware of any matter that may give rise to an Indemnity Claim, the Indemnified Party or the Purchaser Deal Capital will provide to the Indemnifying Party or the Vendor Subsidiaries and Sonora Gold written notice of the Indemnity Claim specifying (to the extent that information is available) the factual basis for the Indemnity Claim and the amount of the Indemnity Claim or, if an amount is not then determinable, an estimate of the amount of the Indemnity Claim, if an estimate is feasible in the circumstances.
8.3.2. (b) If an Indemnity Claim relates to an alleged liability of Deal Capital to any other person (in this Section, a "“Third Party Liability"”), including without limitation any governmental or regulatory body or any taxing authority, which is of a nature such that the Indemnified Party or the Purchaser Deal Capital is required by applicable law to make a payment to a third party before the relevant procedure for challenging the existence or quantum of the alleged liability can be implemented or completed, then the Indemnified Party or the Purchaser Deal Capital may, notwithstanding the provisions of sections 8.3.3. paragraphs (c) and 8.3.4 (d) of this sectionSection, make such payment and forthwith demand reimbursement for such payment from the Indemnifying Party or the Vendor Subsidiaries and Sonora Gold in accordance with this Agreement; provided that, if the alleged Third Party Liability liability to the third party as finally determined on upon completion of settlement negotiations or related legal proceedings is less than the amount which is paid by the Indemnifying Party or the Vendor Subsidiaries and Sonora Gold in respect of the related Indemnity Claim, then the Indemnified Party or the Purchaser shall Deal Capital will forthwith following the final determination pay to the Indemnifying Party or the Vendor Subsidiaries and Sonora Gold the amount by which the amount of the Third Party Liability liability as finally determined is less than the amount which is so paid by the Indemnifying Party or the VendorSubsidiaries and Sonora Gold.
8.3.3. The Indemnified Party or the Purchaser shall (c) Deal Capital will not negotiate, settle, compromise or pay (except in the case of payment of a judgement) any Third Party Liability as to which it proposes to assert an Indemnity Claim, except with the prior consent of the Indemnifying Party or the Vendor Subsidiaries and Sonora Gold (which consent shall must not be unreasonably withheld or delayed), unless there is a reasonable possibility that such Third Party Liability may materially and adversely affect the Purchased Assets or the Indemnified Party or the Purchaserbusiness of Deal Capital, in which case the Indemnified Party or the Purchaser shall Deal Capital will have the right, after notifying the Indemnifying Party or the VendorSubsidiaries and Sonora Gold, to negotiate, settle, compromise or pay such Third Party Liability without prejudice to its rights of indemnification hereunder. The Indemnified Party or the Purchaser shall notify the Indemnifying Party or the Vendor within one (1) week of any third party claims being asserted.
8.3.4. (d) With respect to any Third Party Liability, provided the Indemnifying Party or the Vendor Subsidiaries and Sonora Gold first admit the Indemnified Party's or the Purchaser's Deal Capital’s right to indemnification for the amount of such Third Party Liability which may at any time be determined or settled, then, then in any legal, administrative or other proceedings in connection with the matters forming the basis of the Third Party Liability, the following procedures will apply:
8.3.4.1. (i) except as contemplated by subparagraph 8.3.4.3 (iii) of this sectionparagraph, the Indemnifying Party or the Vendor Subsidiaries and Sonora Gold will have the right to assume carriage of the compromise or settlement of the Third Party Liability and the conduct of any related legal, administrative or other proceedings, but the Indemnified Party or the Purchaser shall Deal Capital and Sonora Gold will have the right and shall will be given the opportunity to participate in the defence of the Third Party Liability, to consult with the Indemnifying Party or the Vendor Subsidiaries and Sonora Gold in the settlement of the Third Party Liability and the conduct of related legal, administrative and other proceedings (including consultation with counsel) and to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Indemnifying Party or the Vendor Subsidiaries, Sonora Gold and the Indemnified Party or the Purchaser shall Deal Capital will be retained by the Indemnifying Party or the VendorSubsidiaries and Sonora Gold;
8.3.4.2. (ii) the Indemnifying Party or the Vendor Subsidiaries and Sonora Gold will co-operate with the Indemnified Party or the Purchaser Deal Capital in relation to the Third Party Liability, will keep it fully advised with respect thereto, will provide it with copies of all relevant documentation as it becomes available, will provide it with access to all records and files relating to the defence of the Third Party Liability and will meet with representatives of the Indemnified Party or the Purchaser Deal Capital at all reasonable times to discuss the Third Party Liability; and
8.3.4.3. (iii) notwithstanding subparagraphs 8.3.4.1 (i) and 8(ii) of this paragraph, the Subsidiaries and Sonora Gold will not settle the Third Party Liability or conduct any legal, administrative or other proceedings in any manner which could, in the reasonable opinion of Deal Capital, have a material adverse affect on the business of Deal Capital, except with the prior written consent of Deal Capital.
(e) If, with respect to any Third Party Liability, the Subsidiaries and Sonora Gold do not admit Deal Capital’s right to indemnification or decline to assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability, then the following provisions will apply:
(i) Deal Capital, at its discretion, may assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability and may defend or settle the Third Party Liability on such terms as Deal Capital, acting in good faith, considers advisable; and
(ii) any cost, loss, damage or expense incurred or suffered by Deal Capital in the settlement of such Third Party Liability or the conduct of any legal, administrative or other proceedings will be added to the amount of the Indemnity Claim.
Appears in 1 contract
Provisions Relating to Indemnity Claims. The following provisions will apply to any claim by the Indemnified Party or the Purchaser, whatever the case may be, Purchaser for indemnification by the Indemnifying Party or the Vendor, whatever the case may be, Vendors pursuant to Sections section 8.1 and 8.2 hereof (hereinafter, in this section, called an "Indemnity Claim").
8.3.1. (a) Promptly after becoming aware of any matter that may give rise to an Indemnity Claim, the Indemnified Party or the Purchaser will provide to the Indemnifying Party or the Vendor Vendors written notice of the Indemnity Claim specifying (to the extent that information is available) the factual basis for the Indemnity Claim and the amount of the Indemnity Claim or, if an amount is not then determinable, an estimate of the amount of the Indemnity Claim, if an estimate is feasible in the circumstances.
8.3.2. (b) If an Indemnity Claim relates to an alleged liability of the Company to any other person (hereinafter, in this section, called a "Third Party Liability"), including without limitation any governmental or regulatory body or any taxing authority, which is of a nature such that the Indemnified Party or the Purchaser Company is required by applicable law to make a payment to a third party before the relevant procedure for challenging the existence or quantum of the alleged liability can be implemented or completed, then the Indemnified Party Company or the Purchaser may, notwithstanding the provisions of sections 8.3.3. paragraphs (c) and 8.3.4 (d) of this section, make such payment or cause the Company to make such payment and forthwith demand reimbursement for such payment from the Indemnifying Party or the Vendor Vendors in accordance with this Agreement; provided that, if the alleged Third Party Liability liability to the third party as finally determined on upon completion of settlement negotiations or related legal proceedings is less than the amount which is paid by the Indemnifying Party or the Vendor Vendors in respect of the related Indemnity Claim, then the Indemnified Party Company or the Purchaser Purchaser, as the case may be, shall forthwith following the final determination pay to the Indemnifying Party or the Vendor Vendors the amount by which the amount of the Third Party Liability liability as finally determined is less than the amount which is so paid by the Indemnifying Party or the VendorVendors.
8.3.3. (c) The Indemnified Party or the Purchaser shall not negotiate, settle, compromise or pay (except in the case of payment of a judgementjudgment) any Third Party Liability as to which it proposes to assert an Indemnity Claim, except with the prior consent of the Indemnifying Party or the Vendor Vendors (which consent shall not be unreasonably withheld or delayed), unless there is a reasonable possibility that such Third Party Liability may materially and adversely affect the Purchased Assets or Business, the Indemnified Party Condition of the Company or the Purchaser, in which case the Indemnified Party or the Purchaser shall have the right, after notifying the Indemnifying Party or the VendorVendors, to negotiate, settle, compromise or pay such Third Party Liability without prejudice to its rights of indemnification hereunder. The Indemnified Party or the Purchaser shall notify the Indemnifying Party or the Vendor within one (1) week of any third party claims being asserted.
8.3.4. (d) With respect to any Third Party Liability, provided the Indemnifying Party or the Vendor Vendors first admit the Indemnified Party's or the Purchaser's right to indemnification for the amount of such Third Party Liability which may at any time be determined or settled, then, then in any legal, administrative or other proceedings in connection with the matters forming the basis of the Third Party Liability, the following procedures will apply:
8.3.4.1. (i) except as contemplated by subparagraph 8.3.4.3 (iii) of this sectionparagraph, the Indemnifying Party or the Vendor Vendors will have the right to assume carriage of the compromise or settlement of the Third Party Liability and the conduct of any related legal, administrative or other proceedings, but the Indemnified Party or Purchaser and the Purchaser Company shall have the right and shall be given the opportunity to participate in the defence of the Third Party Liability, to consult with the Indemnifying Party or the Vendor Vendors in the settlement of the Third Party Liability and the conduct of related legal, administrative and other proceedings (including consultation with counsel) and to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Indemnifying Party or the Vendor Vendors and the Indemnified Party or the Purchaser shall be retained by the Indemnifying Party or the VendorVendors;
8.3.4.2. (ii) the Indemnifying Party or the Vendor Vendors will co-operate with the Indemnified Party or the Purchaser in relation to the Third Party Liability, will keep it fully advised with respect thereto, will provide it with copies of all relevant documentation as it becomes available, will provide it with access to all records and files relating to the defence of the Third Party Liability and will meet with representatives of the Indemnified Party or the Purchaser at all reasonable times to discuss the Third Party Liability; , and
8.3.4.3. (iii) notwithstanding subparagraphs 8.3.4.1 (i) and 8(ii) of this paragraph, the Vendors will not settle the Third Party Liability or conduct any legal, administrative or other proceedings in any manner which could, in the reasonable opinion of the Purchaser, have a material adverse effect on the Business, the Condition of the Company or the Purchaser, except with the prior written consent of the Purchaser.
(e) If, with respect to any Third Party Liability, the Vendors do not admit the Purchaser's right to indemnification or decline to assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability, then the following provisions will apply:
(i) the Purchaser, at its discretion, may assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability and may defend or settle the Third Party Liability on such terms as the Purchaser, acting in good faith, considers advisable, and
(ii) any cost, loss, damage or expense incurred or suffered by the Purchaser and the Company in the settlement of such Third Party Liability or the conduct of any legal, administrative or other proceedings shall be added to the amount of the Indemnity Claim.
Appears in 1 contract
Provisions Relating to Indemnity Claims. The following provisions will apply to any claim by the Indemnified Party or the Purchaser, whatever the case may be, for indemnification by the Indemnifying Party or the Vendor, whatever the case may be, pursuant to Sections 8.1 and 8.2 hereunder (an "Indemnity Claim").):
8.3.1. (a) Promptly after becoming aware of any matter that may give rise to an Indemnity Claim, the Indemnified Party or the Purchaser indemnitee will provide to the Indemnifying Party or the Vendor indemnitor written notice of the Indemnity Claim specifying (to the extent that information is available) the factual basis for the Indemnity Claim and the amount of the Indemnity Claim or, if an amount is not then determinable, an estimate of the amount of the Indemnity Claim, if an estimate is feasible in the circumstances.
8.3.2. (b) If an Indemnity Claim relates to an alleged liability to any other person (hereinafter, in this section, called a "Third Party Liability"), including without limitation any governmental or regulatory body or any taxing authority, which is of a nature such that the Indemnified Party or the Purchaser indemnitee is required by applicable law to make a payment to a third party before the relevant procedure for challenging the existence or quantum of the alleged liability can be implemented or completed, then the Indemnified Party or the Purchaser indemnitee may, notwithstanding the provisions of sections 8.3.3. paragraphs (c) and 8.3.4 (d) of this section, make such payment and forthwith demand reimbursement for such payment from the Indemnifying Party or the Vendor indemnitor in accordance with this Agreement; provided that, if the alleged Third Party Liability liability to the third party as finally determined on upon completion of settlement negotiations or related legal proceedings is less than the amount which is paid by the Indemnifying Party or the Vendor indemnitor in respect of the related Indemnity ClaimClaims, then the Indemnified Party or the Purchaser indemnitee shall forthwith following the final determination pay to the Indemnifying Party or the Vendor indemnitor the amount by which the amount of the Third Party Liability liability as finally determined is less than the amount which is so paid by the Indemnifying Party or the Vendorindemnitor.
8.3.3. (c) The Indemnified Party or the Purchaser indemnitee shall not negotiate, settle, compromise or pay (except in the case of payment of a judgementjudgment) any Third Party Liability as to which it proposes to assert an Indemnity Claim, except with the prior consent of the Indemnifying Party or the Vendor indemnitor (which consent shall not be unreasonably withheld or delayed), unless there is a reasonable possibility that such Third Party Liability may materially and adversely affect the Purchased Assets or the Indemnified Party or the Purchaser, in which case the Indemnified Party or the Purchaser shall have the right, after notifying the Indemnifying Party or the Vendor, to negotiate, settle, compromise or pay such Third Party Liability without prejudice to its rights of indemnification hereunder. The Indemnified Party or the Purchaser shall notify the Indemnifying Party or the Vendor within one (1) week of any third party claims being asserted.
8.3.4. (d) With respect to any Third Party Liability, provided the Indemnifying Party or indemnitor first admits the Vendor first admit the Indemnified Party's or the Purchaserindemnitee's right to indemnification for the amount of such Third Party Liability which may at any time be determined or settled, then, then in any legal, administrative or other proceedings in connection with the matters forming the basis of the Third Party Liability, the following procedures will apply:
8.3.4.1. (i) except as contemplated by subparagraph 8.3.4.3 (iii) of this sectionparagraph, the Indemnifying Party or the Vendor indemnitor will have the right to assume carriage handling of the compromise or settlement of the Third Party Liability and the conduct of any related legal, administrative or other proceedings, but the Indemnified Party or the Purchaser indemnitee shall have the right and shall be given the opportunity to participate in the defence of the Third Party Liability, to consult with the Indemnifying Party or the Vendor indemnitor in the settlement of the Third Party Liability and the conduct of related legal, administrative and other proceedings (including consultation with counsel) and to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Indemnifying Party or the Vendor and the Indemnified Party or the Purchaser both parties shall be retained by the Indemnifying Party or the Vendorindemnitor;
8.3.4.2. (ii) the Indemnifying Party or the Vendor indemnitor will co-operate with the Indemnified Party or the Purchaser indemnitee in relation to the Third Party Liability, will keep it fully advised with respect thereto, will provide it with copies of all relevant documentation as it becomes available, will provide it with access to all records and files relating to the defence of the Third Party Liability and will meet with representatives of the Indemnified Party or the Purchaser indemnitee at all reasonable times to discuss the Third Party Liability; and
8.3.4.3. (iii) notwithstanding subparagraphs 8.3.4.1 (i) and 8(ii) of this paragraph, if the indemnitor is Seller, the indemnitor will not settle the Third Party Liability or conduct any legal, administrative or other proceedings in any manner which could, in the reasonable opinion of the Buyer, have a material adverse effect on the Assets or their use by Buyer, except with the prior written consent of Buyer.
(e) If, with respect to any Third Party Liability, the indemnitor does not admit the indemnitee's right to indemnification or declines to assume handling of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability, then the following provisions will apply:
(i) the indemnitee, at its discretion, may assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability and may defend or settle the Third Party Liability on such terms as the indemnitee, acting in good faith, considers advisable; and
(ii) any cost, loss, damage or expense incurred or suffered by the indemnitee in the settlement of such Third Party Liability or the conduct of any legal, administrative or other proceedings shall be added to the amount of the Indemnity Claim.
Appears in 1 contract
Provisions Relating to Indemnity Claims. The following provisions will apply to any claim by the Indemnified Party or the Purchaser, whatever the case may be, Purchaser for indemnification by the Indemnifying Party or the Vendor, whatever the case may be, Vendor pursuant to Sections Section 8.1 and 8.2 (an "Indemnity Claim").
8.3.18.2.1. Promptly after becoming aware of any matter that may give rise to an Indemnity Claim, the Indemnified Party or the Purchaser will provide to the Indemnifying Party or the Vendor written notice of the Indemnity Claim specifying (to the extent that information is available) the factual basis for the Indemnity Claim and the amount of the Indemnity Claim or, if an amount is not then determinable, an estimate of the amount of the Indemnity Claim, if an estimate is feasible in the circumstances.
8.3.28.2.2. If an Indemnity Claim relates to an alleged liability to any other person (a "Third Party Liability"), including without limitation any governmental or regulatory body or any taxing authority, which is of a nature such that the Indemnified Party or the Purchaser is required by applicable law to make a payment to a third party before the relevant procedure for challenging the existence or quantum of the alleged liability can be implemented or completed, then the Indemnified Party or the Purchaser may, notwithstanding the provisions of sections 8.3.38.2.3. and 8.3.4 8.2.4 of this section, make such payment and forthwith demand reimbursement for such payment from the Indemnifying Party or the Vendor in accordance with this Agreement; provided that, if the alleged Third Party Liability as finally determined on completion of settlement negotiations or related legal proceedings is less than the amount which is paid by the Indemnifying Party or the Vendor in respect of the related Indemnity Claim, then the Indemnified Party or the Purchaser shall forthwith following the final determination pay to the Indemnifying Party or the Vendor the amount by which the amount of the Third Party Liability as finally determined is less than the amount which is so paid by the Indemnifying Party or the Vendor.
8.3.38.2.3. The Indemnified Party or the Purchaser shall not negotiate, settle, compromise or pay (except in the case of payment of a judgement) any Third Party Liability as to which it proposes to assert an Indemnity Claim, except with the prior consent of the Indemnifying Party or the Vendor (which consent shall not be unreasonably withheld or delayed), unless there is a reasonable possibility that such Third Party Liability may materially and adversely affect the condition of the Purchased Assets or the Indemnified Party or the Purchaser, in which case the Indemnified Party or the Purchaser shall have the right, after notifying the Indemnifying Party or the Vendor, to negotiate, settle, compromise or pay such Third Party Liability without prejudice to its rights of indemnification hereunder. The Indemnified Party or the Purchaser shall notify the Indemnifying Party or the Vendor within one (1) week of any third party claims being asserted.
8.3.48.2.4. With respect to any Third Party Liability, provided the Indemnifying Party or the Vendor first admit the Indemnified Party's or the Purchaser's right to indemnification for the amount of such Third Party Liability which may at any time be determined or settled, then, in any legal, administrative or other proceedings in connection with the matters forming the basis of the Third Party Liability, the following procedures will apply:
8.3.4.18.2.4.1. except as contemplated by subparagraph 8.3.4.3 8.2.4.3 of this section, the Indemnifying Party or the Vendor will have the right to assume carriage of the compromise or settlement of the Third Party Liability and the conduct of any related legal, administrative or other proceedings, but the Indemnified Party or the Purchaser shall have the right and shall be given the opportunity to participate in the defence of the Third Party Liability, to consult with the Indemnifying Party or the Vendor in the settlement of the Third Party Liability and the conduct of related legal, administrative and other proceedings (including consultation with counsel) and to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Indemnifying Party or the Vendor and the Indemnified Party or the Purchaser shall be retained by the Indemnifying Party or the Vendor;
8.3.4.28.2.4.2. the Indemnifying Party or the Vendor will co-operate with the Indemnified Party or the Purchaser in relation to the Third Party Liability, will keep it fully advised with respect thereto, will provide it with copies of all relevant documentation as it becomes available, will provide it with access to all records and files relating to the defence of the Third Party Liability and will meet with representatives of the Indemnified Party or the Purchaser at all reasonable times to discuss the Third Party Liability; and
8.3.4.38.2.4.3. notwithstanding subparagraphs 8.3.4.1 8.2.4.1 and 88.2.4.2 of this paragraph, the Vendor will not settle the Third Party Liability or conduct any legal, administrative or other proceedings in any manner which could, in the reasonable opinion of the Purchaser, have a material adverse affect on the Condition of the Business or the Purchaser, except with the prior written consent of the Purchaser.
8.2.5. If, with respect to any Third Party Liability, the Vendor does not admit the Purchaser's right to indemnification or decline to assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability, then the following provisions will apply:
8.2.5.1. the Purchaser, at its discretion, may assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability and may defend or settle the Third Party Liability on such terms as the Purchaser, acting in good faith, considers advisable; and
8.2.5.2. any cost, lost, damage or expense incurred or suffered by the Purchaser in the settlement or defence of such Third Party Liability or the conduct of any legal, administrative or other proceedings shall be added to the amount of the Indemnity Claim.
Appears in 1 contract
Provisions Relating to Indemnity Claims. The following provisions will apply to any claim by the Indemnified Party or the Purchaser, whatever the case may be, Purchaser for indemnification by the Indemnifying Party or the Vendor, whatever the case may be, Vendors pursuant to Sections 8.1 this Agreement and 8.2 to any claim by the Vendors for indemnification by the Purchaser pursuant to this Agreement (an hereinafter, in this SECTION 8.3, the party making a claim for indemnification will be referred to as the "Indemnity ClaimINDEMNIFIED PARTY" and the party against whom the claim for indemnification is made will be referred to as the "INDEMNIFYING PARTY". Any such claim for indemnity will be referred to as the "INDEMNITY CLAIM").
8.3.1. (a) Promptly after becoming aware of any matter that may give rise to an Indemnity Claim, the Indemnified Party or the Purchaser will provide to the Indemnifying Party or the Vendor written notice of the Indemnity Claim specifying (to the extent that information is available) the factual basis for the Indemnity Claim and the amount of the Indemnity Claim or, if an amount is not then determinable, an estimate of the amount of the Indemnity Claim, if an estimate is feasible in the circumstances, provided, however, that no delay on the part of the Indemnified Party in notifying the Indemnifying Party will relieve the Indemnifying Party from its obligation to indemnify the Indemnified Party unless (and only to the extent) that the Indemnifying Party is prejudiced by such delay.
8.3.2. (b) If an Indemnity Claim relates to an alleged liability to any other person (hereinafter, in this SECTION 8.3, called a "Third Party LiabilityTHIRD PARTY LIABILITY"), including without limitation any governmental or regulatory body or any taxing authority, which is of such a nature such that the Indemnified Party or the Purchaser is required by applicable law to make a payment to a third party before the relevant procedure for challenging the existence or quantum of the alleged liability can be implemented or completed, then the Indemnified Party or the Purchaser may, notwithstanding the provisions of sections 8.3.3. and 8.3.4 of this sectionSECTIONS 8.3(C) AND 8.3(D), make such payment and forthwith demand reimbursement for such payment from the Indemnifying Party or the Vendor in accordance with this AgreementParty; provided that, if the alleged Third Party Liability liability to the third party as finally determined on upon completion of settlement negotiations or related legal proceedings is less than the amount which that is so paid by the Indemnifying Party or the Vendor in respect of the related Indemnity ClaimParty, then the Indemnified Party or the Purchaser shall will, forthwith following the such final determination and receipt of the overpaid amount from the third party, pay to the Indemnifying Party or the Vendor the amount by which the amount of the Third Party Liability liability, as finally determined determined, is less than the amount which is that was so paid by the Indemnifying Party or the VendorParty.
8.3.3. (c) The Indemnified Party or the Purchaser shall will not negotiate, settle, compromise or pay (except in the case of payment of a judgementjudgment) any Third Party Liability as to in respect of which it has or proposes to assert an Indemnity Claim, except with the prior consent of the Indemnifying Party or the Vendor (which consent shall not be unreasonably withheld or delayed), unless there is a reasonable possibility that such Third Party Liability may materially and adversely affect the Purchased Assets or the Indemnified Party (whether directly or the Purchaserindirectly), in which case the Indemnified Party or the Purchaser shall will have the right, after notifying the Indemnifying Party or the VendorParty, to negotiate, settle, compromise or pay such Third Party Liability without prejudice to its rights of indemnification hereunder. The Indemnified Party or the Purchaser shall notify the Indemnifying Party or the Vendor within one (1) week of any third party claims being asserted.
8.3.4. (d) With respect to any Third Party Liability, provided the Indemnifying Party or the Vendor first admit Party: (i) admits the Indemnified Party's or the Purchaser's right to indemnification for the amount of such Third Party Liability which that may at any time be determined or settledsettled within 10 days of receipt of notice of the Third Party Liability from the Indemnified Party; (ii) provides the Indemnified Party with evidence reasonably satisfactory to the Indemnified Party that the Indemnifying Party will have the financial resources to defend Third Party Liability and fulfill its indemnification obligations hereunder; and (iii) conducts the defense of the Third Party Liability actively and diligently and provided further that: (iv) the action or other proceeding respecting prosecution of the Third Party Liability involves only a claim for money damages and not a claim for equitable relief; and (v) settlement of, thenor an adverse judgment with respect to the Third Party Liability is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party, then in any legal, administrative or other proceedings in connection with the matters forming the basis of the Third Party Liability, the following procedures will apply:
8.3.4.1. (i) except as contemplated by subparagraph 8.3.4.3 of this sectionPARAGRAPH 8.3(D)(III), the Indemnifying Party or the Vendor will have the right to assume carriage of the compromise or settlement of the Third Party Liability and the conduct of any related legal, administrative or other proceedingsproceedings through counsel of its choice reasonably satisfactory to the Indemnified Party, but the Indemnified Party or the Purchaser shall will have the right and shall will be given the opportunity to participate in the defence of the Third Party Liability, to consult with the Indemnifying Party or the Vendor in the settlement of the Third Party Liability and the conduct of related legal, administrative and other proceedings (including consultation with counsel);
(ii) and to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Indemnifying Party or the Vendor and the Indemnified Party or the Purchaser shall be retained by the Indemnifying Party or the Vendor;
8.3.4.2. the Indemnifying Party or the Vendor will co-operate with the Indemnified Party or the Purchaser in relation to the Third Party Liability, will keep it the Indemnified Party fully advised with respect thereto, will provide it the Indemnified Party with copies of all relevant documentation as it becomes available, will provide it the Indemnified Party with access to all records and files relating to the defence of the Third Party Liability and will meet with representatives of the Indemnified Party or the Purchaser at all reasonable times to discuss the Third Party Liability; and
8.3.4.3. (iii) notwithstanding subparagraphs 8.3.4.1 PARAGRAPHS 8.3(D)(I) AND (II), the Indemnifying Party will not settle the Third Party Liability or conduct any legal, administrative or other proceedings in any manner that could, in the reasonable opinion of the Indemnified Party have a material adverse affect on the Indemnified Party, except with the prior written consent of the Indemnified Party.
(e) If, with respect to any Third Party Liability, any of the conditions set forth in the opening sentence of SECTION 8.3(D) is or becomes unsatisfied, or in the event that the Indemnifying Party does not act to diligently defend against such Third Party Liability or declines to assume carriage of the applicable legal, administrational or other proceedings, then the following provisions will apply:
(i) the Indemnified Party, at its discretion, may assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability and 8may defend or settle the Third Party Liability on such terms as the Indemnified Party, acting in good faith, considers advisable; and
(ii) any cost, lost, damage or expense incurred or suffered by the Indemnified Party in the settlement of such Third Party Liability or the conduct of any legal, administrative or other proceedings will be added to the amount of the Indemnity Claim.
Appears in 1 contract
Provisions Relating to Indemnity Claims. The following provisions will apply to any claim by the Indemnified Party Parties (or the Purchaser, whatever the case may be, any of them) for indemnification by the Indemnifying Party or the Vendor, whatever the case may be, pursuant to Sections 8.1 and 8.2 Section 9.1 or Section 9.2 (an "Indemnity Claim").):
8.3.1. Promptly (a) As soon as reasonably practicable after becoming aware of any matter that may give rise to an Indemnity Claim, the Indemnified Party Parties (or the Purchaser any of them) will provide to the Indemnifying Party Purchaser or the Vendor Vendors, as applicable (the "Indemnifying Party") written notice of the Indemnity Claim specifying (to the extent that information is available) the factual basis for the Indemnity Claim and the amount of the Indemnity Claim or, if an amount is not then determinable, an estimate of the amount of the Indemnity Claim, Claim if an estimate is feasible in the circumstances.
8.3.2. (b) If an Indemnity Claim relates to an alleged liability of the Corporation to any other person Person (a "Third Party LiabilityClaim"), including without limitation any governmental or regulatory body or any taxing authorityGovernmental Authority, which is of a nature such that the Indemnified Party or the Purchaser Corporation is required by applicable law Law to make a payment to a third party Third Party before the relevant procedure for challenging the existence or quantum of the alleged liability can be implemented or completed, then the Indemnified Party Parties (or the Purchaser any of them) may, notwithstanding the provisions of sections 8.3.3. paragraphs (c) and 8.3.4 (d) of this sectionSection, make such payment and forthwith immediately demand reimbursement for such payment from the Indemnifying Party or the Vendor in accordance with this Agreement; provided that. However, if the alleged liability to the Third Party Liability Party, as finally determined on upon completion of settlement negotiations or related legal proceedings proceedings, is less than the amount which is paid by the Indemnifying Party or the Vendor in respect of the related Indemnity Claim, then the Indemnified Party Parties (or the Purchaser shall forthwith any of them) shall, immediately following the such final determination determination, pay to the Indemnifying Party or the Vendor the amount by which the amount of the Third Party Liability liability as finally determined is less than the amount which is so paid by the Indemnifying Party or the VendorParty.
8.3.3. (c) The Indemnified Party or the Purchaser Parties shall not negotiate, settle, compromise or pay (except in the case of payment of a judgementjudgment) any Third Party Liability Claim as to which it proposes to assert an Indemnity Claim, except with the prior consent of the Indemnifying Party or the Vendor (which consent shall must not be unreasonably withheld withheld, delayed or delayedconditioned), unless there is a reasonable possibility that such Third Party Liability Claim may materially and adversely affect the Purchased Assets Business, the Condition of the Corporation or the Indemnified Party Parties (or the Purchaserany of them), in which case the Indemnified Party or the Purchaser shall Parties will have the right, after notifying the Indemnifying Party or the VendorParty, as applicable, to negotiate, settle, compromise or pay such Third Party Liability Claim without prejudice to its their rights of indemnification hereunder. The Indemnified Party or the Purchaser shall notify the Indemnifying Party or the Vendor within one (1) week of any third party claims being assertedunder this Agreement.
8.3.4. (d) With respect to any Third Party LiabilityClaim, provided if the Indemnifying Party or first admits the Vendor first admit right of the Indemnified Party's or the Purchaser's right Parties to indemnification for the amount of such Third Party Liability Claim which may at any time be determined or settled, thenand except as contemplated by Section 9.5(f), then in any legal, administrative or other proceedings in connection with the matters forming the basis of the Third Party LiabilityClaim, the following procedures will apply:
8.3.4.1. (i) except as contemplated by subparagraph 8.3.4.3 (iii) of this sectionparagraph, the Indemnifying Party or the Vendor will have the right to assume carriage of the negotiation, settlement or compromise or settlement of the Third Party Liability Claim and the conduct of any related legal, administrative or other proceedings, but the Indemnified Party or the Purchaser shall Parties will have the right and shall will be given the opportunity to participate in the defence defense of the Third Party LiabilityClaim, to consult with the Indemnifying Party or the Vendor in the settlement of the Third Party Liability Claim and the conduct of related legal, administrative and other proceedings (including consultation with counsel) and to disagree on reasonable grounds with the selection and retention of counsel, in which case the Indemnifying Party shall retain counsel satisfactory to the Indemnifying Party or the Vendor and the Indemnified Party or the Purchaser shall be retained by Parties;
(ii) the Indemnifying Party or the Vendor;
8.3.4.2. the Indemnifying Party or the Vendor will co-operate with the Indemnified Party or the Purchaser Parties in relation to the Third Party LiabilityClaim, will keep it the Indemnified Parties fully advised with respect thereto, will provide it the Indemnified Parties with copies of all relevant documentation as it becomes available, will provide it the Indemnified Parties with access to all records and files relating to the defence defense of the Third Party Liability Claim and will meet with representatives of the Indemnified Party or the Purchaser Parties at all reasonable times to discuss the Third Party LiabilityClaim; and
8.3.4.3. (iii) notwithstanding subparagraphs 8.3.4.1 (i) and 8(ii) of this paragraph, the Indemnifying Party will not settle the Third Party Claim or conduct any legal, administrative or other proceedings in any manner which could, in the reasonable opinion of the Indemnified Parties (or any of them), have a Material Adverse Change on the Business, the Condition of the Corporation or the Indemnified Parties (or any of them), except with the prior written consent of the Indemnified Parties.
(e) If, with respect to any Third Party Claim, the Indemnifying Party does not admit the right of the Indemnified Parties to indemnification or declines to assume carriage of the negotiation, settlement or compromise of the Third Party Claim or of any legal, administrative or other proceedings relating to the Third Party Claim, then the following provisions will apply:
(i) the Indemnified Parties (or any of them), at their discretion, may assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Claim and may defend or settle the Third Party Claim on such terms as the Indemnified Parties (or any of them), acting in good faith, consider advisable; and
(ii) any Losses incurred or suffered by the Indemnified Parties in connection with the settlement of such Third Party Claim or the conduct of any legal, administrative or other proceedings will be added to the amount of the Indemnity Claim.
(f) If, with respect to any Third Party Claim, the Indemnified Party is the Purchaser, the Indemnifying Party is one or more of the Vendors and the Third Party Claim involves any customer, supplier, subcontractor, dealer, agent or distributor of the Business, then the following provisions will apply:
(i) except as contemplated by subparagraph (iii) of this paragraph, the Purchaser will have the right to assume carriage of the compromise or settlement of the Third Party Claim and the conduct of any related legal, administrative or other proceedings, but the Vendors will have the right and will be given the opportunity to participate in the defense of the Third Party Claim, to consult with the Purchaser in the settlement of the Third Party Claim and the conduct of related legal, administrative and other proceedings (including consultation with counsel);
(ii) the Purchaser will co‑operate with the Vendors in relation to the Third Party Claim, will keep the Vendors fully advised with respect thereto, will provide the Vendors with copies of all relevant documentation as it becomes available, will provide the Vendors with access to all records and files relating to the defense of the Third Party Claim and will meet with representatives of the Vendors at all reasonable times to discuss the Third Party Claim; and
(iii) notwithstanding subparagraphs (i) and (ii) of this paragraph, the Purchaser will not settle the Third Party Claim except with the prior written consent of the Vendors, such consent not to be unreasonably withheld, delayed or conditioned.
Appears in 1 contract
Samples: Share Purchase Agreement (Thermon Group Holdings, Inc.)
Provisions Relating to Indemnity Claims. The following provisions will apply to any claim by the Indemnified Party or the Purchaser, whatever the case may be, Purchaser for indemnification by the Indemnifying Party or Vendor and the Vendor, whatever the case may be, Shareholder pursuant to Sections section 8.1 and 8.2 hereof (hereinafter, in this section, called an "Indemnity Claim").
8.3.1. (a) Promptly after becoming aware of any matter that may give rise to an Indemnity Claim, the Indemnified Party or the Purchaser will provide to the Indemnifying Party or Vendor and the Vendor Shareholder written notice of the Indemnity Claim specifying (to the extent that information is available) the factual basis for the Indemnity Claim and the amount of the Indemnity Claim or, if an amount is not then determinable, an estimate of the amount of the Indemnity Claim, if an estimate is feasible in the circumstances.
8.3.2. (b) If an Indemnity Claim relates to an alleged liability of the Corporation to any other person (hereinafter, in this section, called a "Third Party Liability"), including without limitation any governmental or regulatory body or any taxing authority, which is of a nature such that the Indemnified Party or the Purchaser Corporation is required by applicable law to make a payment to a third party before the relevant procedure for challenging the existence or quantum of the alleged liability can be implemented or completed, then the Indemnified Party Corporation or the Purchaser may, notwithstanding the provisions of sections 8.3.3. paragraphs (c) and 8.3.4 (d) of this section, make such payment or cause the Corporation to make such payment and forthwith demand reimbursement for such payment from the Indemnifying Party or Vendor and the Vendor Shareholder in accordance with wi th this Agreement; provided that, if the alleged Third Party Liability liability to the third party as finally determined on upon completion of settlement negotiations or related legal proceedings is less than the amount which is paid by the Indemnifying Party or Vendor and the Vendor Shareholder in respect of the related Indemnity Claim, then the Indemnified Party Corporation or the Purchaser Purchaser, as the case may be, shall forthwith following the final determination pay to the Indemnifying Party or Vendor and the Vendor Shareholder the amount by which the amount of the Third Party Liability liability as finally determined is less than the amount which is so paid by the Indemnifying Party or Vendor and the VendorShareholder.
8.3.3. (c) The Indemnified Party or the Purchaser shall not negotiate, settle, compromise or pay (except in the case of payment of a judgementjudgment) any Third Party Liability as to which it proposes to assert an Indemnity Claim, except with the prior consent of the Indemnifying Party or Vendor and the Vendor Shareholder (which consent shall not be unreasonably withheld or delayed), unless there is a reasonable possibility that such Third Party Liability may materially and adversely affect the Purchased Assets or Business, the Indemnified Party Condition of the Corporation or the Purchaser, in which case the Indemnified Party or the Purchaser shall have the right, after notifying the Indemnifying Party or Vendor and the VendorShareholder, to negotiate, settle, compromise or pay such Third Party Liability without prejudice to its rights of indemnification hereunder. The Indemnified Party or the Purchaser shall notify the Indemnifying Party or the Vendor within one I (1d) week of any third party claims being asserted.
8.3.4. With respect to any Third Party Liability, provided the Indemnifying Party or Vendor and the Vendor Shareholder first admit the Indemnified Party's or the Purchaser's right to indemnification for the amount of such Third Party Liability which may at any time be determined or settled, then, then in any legal, administrative or other proceedings in connection with the matters forming the basis of the Third Party Liability, the following procedures will apply:
8.3.4.1. (i) except as contemplated by subparagraph 8.3.4.3 (iii) of this sectionparagraph, the Indemnifying Party or Vendor and the Vendor Shareholder will have the right to assume carriage of the compromise or settlement of the Third Party Liability and the conduct of any related legal, administrative or other proceedings, but the Indemnified Party or Purchaser and the Purchaser Corporation shall have the right and shall be given the opportunity to participate in the defence of the Third Party Liability, to consult with the Indemnifying Party or Vendor and the Vendor Shareholder in the settlement of the Third Party Liability and the conduct of related legal, administrative and other proceedings (including consultation with counsel) and to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Indemnifying Party or Vendor, the Vendor Shareholder and the Indemnified Party or the Purchaser shall be retained by the Indemnifying Party or Vendor and the VendorShareholder;
8.3.4.2. the Indemnifying Party or (ii) the Vendor and the Shareholder will co-operate with the Indemnified Party or the Purchaser in relation to the Third Party Liability, will keep it fully advised with respect thereto, will provide it with copies of all relevant documentation as it becomes available, will provide it with access to all records and files relating to the defence of the Third Party Liability and will meet with representatives of the Indemnified Party or the Purchaser at all reasonable times to discuss the Third Party Liability; and
8.3.4.3. (iii) notwithstanding subparagraphs 8.3.4.1 (i) and 8(ii) of this paragraph, the Vendor and the Shareholder will not settle the Third Party Liability or conduct any legal, administrative or other proceedings in any manner which could, in the reasonable opinion of the Purchaser, have a material adverse effect on the Business, the Condition of the Corporation or the Purchaser, except with the prior written consent of the Purchaser.
Appears in 1 contract
Samples: Share Purchase Agreement
Provisions Relating to Indemnity Claims. The following provisions will apply to any claim by the Indemnified Party or the Purchaser, whatever the case may be, for indemnification by the Indemnifying Party or the Vendor, whatever the case may be, pursuant to Sections 8.1 and 8.2 (an "Indemnity Claim").
8.3.1. 8.3.1 Promptly after becoming aware of any matter that may give rise to a claim by the Assignee for indemnification by the Assignor pursuant to Section 8.1 or a claim by the Assignor for indemnification by the Assignee pursuant to Section 8.2, (an “Indemnity Claim”), the Indemnified Party or party making the Purchaser claim (the “Indemnitee”) will provide to the Indemnifying Party or other party (the Vendor “Indemnitor”) written notice of the Indemnity Claim specifying (to the extent that information is available) the factual basis for the Indemnity Claim and the amount of the Indemnity Claim (the “Damages”) or, if an amount is Damages are not then determinable, an estimate of the amount of the Indemnity ClaimDamages, if an estimate is feasible in the circumstances.
8.3.2. If an 8.3.2 With respect to any Indemnity Claim that relates to an alleged liability to any other third person (a "the “Third Party Liability"”), including without limitation any governmental or regulatory body or any taxing authority, which is of a nature such that the Indemnified Party or the Purchaser is required by applicable law to make a payment to a third party before the relevant procedure for challenging the existence or quantum of the alleged liability can be implemented or completed, then the Indemnified Party or the Purchaser may, notwithstanding the provisions of sections 8.3.3. and 8.3.4 of this section, make such payment and forthwith demand reimbursement for such payment from the Indemnifying Party or the Vendor in accordance with this Agreement; provided that, if the alleged Third Party Liability as finally determined on completion of settlement negotiations or related legal proceedings is less than the amount which is paid by the Indemnifying Party or the Vendor in respect of the related Indemnity Claim, then the Indemnified Party or the Purchaser shall forthwith following the final determination pay to the Indemnifying Party or the Vendor the amount by which the amount of the Third Party Liability as finally determined is less than the amount which is so paid by the Indemnifying Party or the Vendor.
8.3.3. The Indemnified Party or the Purchaser shall not negotiate, settle, compromise or pay (except in the case of payment of a judgement) any Third Party Liability as to which it proposes to assert an Indemnity Claim, except with the prior consent of the Indemnifying Party or the Vendor (which consent shall not be unreasonably withheld or delayed), unless there is a reasonable possibility that such Third Party Liability may materially and adversely affect the Purchased Assets or the Indemnified Party or the Purchaser, in which case the Indemnified Party or the Purchaser shall have the right, after notifying the Indemnifying Party or the Vendor, to negotiate, settle, compromise or pay such Third Party Liability without prejudice to its rights of indemnification hereunder. The Indemnified Party or the Purchaser shall notify the Indemnifying Party or the Vendor within one (1) week of any third party claims being asserted.
8.3.4. With respect to any Third Party Liability, provided the Indemnifying Party or Indemnitor first admits the Vendor first admit the Indemnified Party's or the Purchaser's Indemnitee’s right to indemnification for the amount of such Third Party Liability which may at any time be determined or settled, then, then in any legal, administrative or other proceedings in connection with the matters forming the basis of the Third Party Liability, the following procedures will apply:
8.3.4.1. (a) except as contemplated by subparagraph 8.3.4.3 of this sectionparagraph (c) below, the Indemnifying Party or the Vendor Indemnitor will have the right to assume carriage of the compromise or settlement of the Third Party Liability and the conduct of any related legal, administrative or other proceedings, but the Indemnified Party or the Purchaser shall Indemnitee shall, at its cost and expense, have the right and shall be given the opportunity to participate in the defence defense of the Third Party Liability, to consult with the Indemnifying Party or the Vendor Indemnitor in the settlement of the Third Party Liability and the conduct of related legal, administrative and other proceedings (including consultation with counsel) and to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Indemnifying Party or the Vendor and the Indemnified Party or the Purchaser shall be retained by the Indemnifying Party or the Vendor);
8.3.4.2. the Indemnifying Party or the Vendor (b) each party will co-operate with the Indemnified Party or the Purchaser other in relation to the Third Party Liability, will keep it fully advised with respect thereto, will provide it with copies of all relevant documentation as it becomes available, will provide it with access to all records and files relating to the defence defense of the Third Party Liability and will meet with representatives of the Indemnified Party or the Purchaser other party at all reasonable times to discuss the Third Party Liability; and
8.3.4.3(c) notwithstanding paragraphs (a) and (b), the Indemnitor will not settle the Third Party Liability or conduct any legal, administrative or other proceedings in any manner which could, in the reasonable opinion of the Indemnitee, have a material adverse effect on the Purchased Assets, except with the prior written consent of the Indemnitee.
8.3.3 If, with respect to any Third Party Liability, the Indemnitor does not admit the Indemnitee’ s right to indemnification or declines to assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability, then the following provisions will apply:
(a) the Indemnitee, at its discretion, may assume carriage of any legal, administrative or other proceedings relating to the Third Party Liability and may defend the Third Party Liability on such terms as the Indemnitee, acting in good faith, considers advisable,
(b) any cost, loss, damage or expense incurred or suffered by the Indemnitee in the settlement of such Third Party Liability or the conduct of any legal, administrative or other proceedings shall be added to the amount of the Indemnity Claim; and
(c) if, pursuant to this Section 8.3.3, the Indemnitee undertakes the investigation and defence of any Third Party Liability, then the Indemnitee may compromise and settle the legal, administrative or other proceedings relating to the Third Party Liability but the Indemnitor shall not be bound by any compromise or settlement of such legal, administrative or other proceedings relating to such Third Party Liability effected without its consent (which consent is not to be unreasonably withheld) and, in no event, shall the Indemnitor be required to assume any liability for any Third Party Liability in excess of the limitations set forth herein.
8.3.4 An Indemnity Claim not involving a Third Party Liability shall be indemnified, paid or reimbursed promptly after such Indemnity Claim has been finally determined or agreed to in writing by the Assignee and Assignor.
8.3.5 Any Claim for Damages made by the Assignee hereunder may be set-off by the Assignee against any payment owed to the Assignor. notwithstanding subparagraphs 8.3.4.1 and 8The exercise of such right of set off by the Assignee in good faith, whether or not ultimately determined to be justified, shall not constitute a default under this Agreement, regardless of whether the Assignor disputes such set off, or whether such set off is for a contingent or an unliquidated amount.
Appears in 1 contract
Samples: Intellectual Property Assignment Agreement (Loop Industries, Inc.)
Provisions Relating to Indemnity Claims. The following provisions will apply to any claim by the Indemnified Party either the Vendor or the Purchaser, whatever Purchaser (the case may be, "Indemnified Party") for indemnification by the other (the "Indemnifying Party Party") pursuant to section 7.1 or the Vendor7.2 hereof, whatever as the case may bebe (hereinafter, pursuant to Sections 8.1 and 8.2 (in this section, called an "Indemnity Claim").
8.3.1. (a) Promptly after becoming aware of any matter that may give rise to an Indemnity Claim, the Indemnified Party or the Purchaser will provide to the Indemnifying Party or the Vendor written notice of the Indemnity Claim specifying (to the extent that information is available) the factual basis for the Indemnity Claim and the amount of the Indemnity Claim or, if an amount is not then determinable, an estimate of the amount of the Indemnity Claim, if an estimate is feasible in the circumstances.
8.3.2. (b) If an Indemnity Claim relates to an alleged liability to any other person (hereinafter, in this section, called a "Third Party Liability"), including without limitation any governmental or regulatory body or any taxing authority, which is of a nature such that the Indemnified Party or the Purchaser is required by applicable law to make a payment to a third party before the relevant procedure for challenging the existence or quantum of the alleged liability can be implemented or completed, then the Indemnified Party or the Purchaser may, notwithstanding the provisions of sections 8.3.3. paragraphs (c) and 8.3.4 (d) of this section, make such payment and forthwith demand reimbursement for such payment from the Indemnifying Party or the Vendor in accordance with this Agreement; provided that, if the alleged Third Party Liability liability to the third party as finally determined on upon completion of settlement negotiations or related legal proceedings is less than the amount which is paid by the Indemnifying Party or the Vendor in respect of the related Indemnity Claim, then the Indemnified Party or the Purchaser shall forthwith following the final determination pay to the Indemnifying Party or the Vendor the amount by which the amount of the Third Party Liability liability as finally determined is less than the amount which is so paid by the Indemnifying Party or the VendorParty.
8.3.3. (c) The Indemnified Party or the Purchaser shall not negotiate, settle, compromise or pay (except in the case of payment of a judgementjudgment) any Third Party Liability as to which it proposes to assert an Indemnity Claim, except with the prior consent of the Indemnifying Party or the Vendor (which consent shall not be unreasonably withheld or delayed), unless there is a reasonable possibility that such Third Party Liability may materially and adversely affect the condition of the Purchased Assets or the Indemnified Party or the PurchaserParty, in which case the Indemnified Party or the Purchaser shall have the right, after notifying the Indemnifying Party or the VendorParty, to negotiate, settle, compromise or pay such Third Party Liability without prejudice to its rights of indemnification hereunder. The Indemnified Party or the Purchaser shall notify the Indemnifying Party or the Vendor within one (1) week of any third party claims being asserted.
8.3.4. (d) With respect to any Third Party Liability, provided the Indemnifying Party or the Vendor first admit admits the Indemnified Party's or the Purchaser's right to indemnification for the amount of such Third Party Liability which may at any time be determined or settled, then, then in any legal, administrative or other proceedings in connection with the matters forming the basis of the Third Party Liability, the following procedures will apply:
8.3.4.1. (i) except as contemplated by subparagraph 8.3.4.3 of this section(iii) below, the Indemnifying Party or the Vendor will have the right to assume carriage of the compromise or settlement of the Third Party Liability and the conduct of any related legal, administrative or other proceedings, but the Indemnified Party or the Purchaser shall have the right and shall be given the opportunity to participate in the defence of the Third Party Liability, to consult with the Indemnifying Party or the Vendor in the settlement of the Third Party Liability and the conduct of related legal, administrative and other proceedings (including consultation with counsel) and to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Indemnifying Party or the Vendor and the Indemnified Party or the Purchaser shall be retained by the Indemnifying Party or the VendorParty;
8.3.4.2. (ii) the Indemnifying Party or the Vendor will co-operate with the Indemnified Party or the Purchaser in relation to the Third Party Liability, will keep it fully advised with respect thereto, will provide it with copies of all relevant documentation as it becomes available, will provide it with access to all records and files relating to the defence of the Third Party Liability and will meet with representatives of the Indemnified Party or the Purchaser at all reasonable times to discuss the Third Party Liability; , and
8.3.4.3. (iii) notwithstanding subparagraphs 8.3.4.1 (i) and 8(ii), the Indemnifying Party will not settle the Third Party Liability or conduct any legal, administrative or other proceedings in any manner which could, in the reasonable opinion of the Indemnified Party, have a material adverse affect on the condition of the Purchased Assets or the Indemnified Party, except with the prior written consent of the Indemnified Party.
(e) If, with respect to any Third Party Liability, the Indemnifying Party does not admit the Indemnified Party's right to indemnification or decline to assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability, then the following provisions will apply:
(i) the Indemnified Party, at its discretion, may assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability and may defend or settle the Third Party Liability on such terms as the Indemnified Party, acting in good faith, considers advisable, and
(ii) any cost, lost, damage or expense incurred or suffered by the Indemnified Party in the settlement of such Third Party Liability or the conduct of any legal, administrative or other proceedings shall be added to the amount of the Indemnity Claim.
Appears in 1 contract
Samples: Asset Purchase Agreement (Golden Phoenix Minerals Inc)
Provisions Relating to Indemnity Claims. The following provisions will apply to any claim by the Indemnified Party or the Purchaser, whatever the case may be, Purchaser for indemnification by the Indemnifying Party or the Vendor, whatever the case may be, Vendor pursuant to Sections Section 8.1 and 8.2 hereof (an "Indemnity Claim").
8.3.1. (a) Promptly after becoming aware of any matter that may give rise to an Indemnity Claim, the Indemnified Party or the Purchaser will provide to the Indemnifying Party or the Vendor written notice of the Indemnity Claim specifying (to the extent that information is available) the factual basis for the Indemnity Claim and the amount of the Indemnity Claim or, if an amount is not then determinable, an estimate of the amount of the Indemnity Claim, if an estimate is feasible in the circumstances.
8.3.2. (b) If an Indemnity Claim relates to an alleged liability of the Corporation to any other person (a "Third Party Liability"), including without limitation any governmental or regulatory body or any taxing authority, which is of a nature such that the Indemnified Party or the Purchaser Corporation is required by applicable law to make a payment to a third party before the relevant procedure for challenging the existence or quantum of the alleged liability can be implemented or completed, then the Indemnified Party or the Purchaser may, notwithstanding the provisions of sections 8.3.3. paragraphs (c) and 8.3.4 (d) of this section, make such payment or cause the Corporation to make such payment and forthwith demand reimbursement for such payment from the Indemnifying Party or the Vendor in accordance with this Agreementagreement; provided that, if the alleged Third Party Liability as finally determined on completion of settlement negotiations or related legal proceedings is less than the amount which is paid by the Indemnifying Party or the Vendor in respect of the related Indemnity Claim, then the Indemnified Party Corporation or the Purchaser Purchaser, as the case may be, shall forthwith following the final determination pay to the Indemnifying Party or the Vendor the amount by which the amount of the Third Party Liability as finally determined is less than the amount which is so paid by the Indemnifying Party or the Vendor.
8.3.3. (c) The Indemnified Party or the Purchaser shall not negotiate, settle, compromise or pay (except in the case of payment of a judgementjudgment) any Third Party Liability as to which it proposes to assert an Indemnity Claim, except with the prior consent of the Indemnifying Party or the Vendor (which consent shall not be unreasonably withheld or delayed), unless there is a reasonable possibility that such Third Party Liability may materially and adversely affect the Purchased Assets or Business, the Indemnified Party Condition of the Corporation or the Purchaser, in which case the Indemnified Party or the Purchaser shall have the right, after notifying the Indemnifying Party or the Vendor, Vendor to negotiate, settle, compromise or pay such Third Party Liability without prejudice to its rights of indemnification hereunder. The Indemnified Party or the Purchaser shall notify the Indemnifying Party or the Vendor within one (1) week of any third party claims being asserted.
8.3.4. (d) With respect to any Third Party Liability, provided the Indemnifying Party or the Vendor first admit the Indemnified Party's or the Purchaser's right to indemnification for the amount of such Third Party Liability which may at any time be determined or settled, then, in any legal, administrative or other proceedings in connection with the matters forming the basis of the Third Party Liability, the following procedures will apply:
8.3.4.1. (i) except as contemplated by subparagraph 8.3.4.3 (iii) of this sectionparagraph, the Indemnifying Party or the Vendor will have the right to assume carriage of the compromise or settlement of the Third Party Liability and the conduct of any related legal, administrative or other proceedings, but the Indemnified Party or Purchaser and the Purchaser Corporation shall have the right and shall be given the opportunity to participate in the defence of the Third Party Liability, to consult with the Indemnifying Party or the Vendor in the settlement of the Third Party Liability and the conduct of related legal, administrative and other proceedings (including consultation with counsel) and to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Indemnifying Party or the Vendor and the Indemnified Party or the Purchaser shall be retained by the Indemnifying Party or the Vendor;
8.3.4.2. the Indemnifying Party or (ii) the Vendor will co-operate with the Indemnified Party or the Purchaser in relation to the Third Party Liability, will keep it fully advised with respect thereto, will provide it with copies of all relevant documentation as it becomes available, will provide it with access to all records and files relating to the defence of the Third Party Liability and will meet with representatives of the Indemnified Party or the Purchaser at all reasonable times to discuss the Third Party Liability; and
8.3.4.3. (iii) notwithstanding subparagraphs 8.3.4.1 (i) and 8(ii) of this paragraph, the Vendor will not settle the Third Party Liability or conduct any legal, administrative or other proceedings in any manner which could, in the reasonable opinion of the Purchaser, have a material adverse affect on the Business, the Condition of the Corporation or the Purchaser, except with the prior written consent of the Purchaser.
(e) If, with respect to any Third Party Liability, the Vendor do not admit the Purchaser's right to indemnification or decline to assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability, then the following provisions will apply:
(i) the Purchaser, at its discretion, may assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability and may defend or settle the Third Party Liability on such terms as the Purchaser, acting in good faith, considers advisable; and
(ii) any cost, loss, damage or expense incurred or suffered by the Purchaser and the Corporation in the settlement or defence of such Third Party Liability or the conduct of any legal, administrative or other proceedings shall be added to the amount of the Indemnity Claim.
Appears in 1 contract
Samples: Share Purchase Agreement (Futurelink Distribution Corp)
Provisions Relating to Indemnity Claims. The following provisions will apply to any claim by the Indemnified Party or the Purchaser, whatever the case may be, for indemnification by the Indemnifying Party or the Vendor, whatever the case may be, pursuant to Sections 8.1 and 8.2 (an "Indemnity Claim").
8.3.1. 8.3.1 Promptly after becoming aware of any matter that may give rise to a claim by the Purchaser for indemnification by either of the Vendor or KI, as the case may be, pursuant to Section 8.1 or a claim by the Vendor or KI for indemnification by the Purchaser pursuant to Section 8.2, (an “Indemnity Claim”), the Indemnified Party or party making the Purchaser claim (the “Indemnitee”) will provide to each of the Indemnifying Party or other parties (collectively, the Vendor “Indemnitor”) written notice of the Indemnity Claim specifying (to the extent that information is available) the factual basis for the Indemnity Claim and the amount of the Indemnity Claim or, if an amount is not then determinable, an estimate of the amount of the Indemnity Claim, if an estimate is feasible in the circumstances.
8.3.2. If an Indemnity Claim relates to an alleged liability to any other person (a "Third Party Liability"), including without limitation any governmental or regulatory body or any taxing authority, which is of a nature such that the Indemnified Party or the Purchaser is required by applicable law to make a payment to a third party before the relevant procedure for challenging the existence or quantum of the alleged liability can be implemented or completed, then the Indemnified Party or the Purchaser may, notwithstanding the provisions of sections 8.3.3. and 8.3.4 of this section, make such payment and forthwith demand reimbursement for such payment from the Indemnifying Party or the Vendor in accordance with this Agreement; provided that, if the alleged Third Party Liability as finally determined on completion of settlement negotiations or related legal proceedings is less than the amount which is paid by the Indemnifying Party or the Vendor in respect of the related Indemnity Claim, then the Indemnified Party or the Purchaser shall forthwith following the final determination pay to the Indemnifying Party or the Vendor the amount by which the amount of the Third Party Liability as finally determined is less than the amount which is so paid by the Indemnifying Party or the Vendor.
8.3.3. 8.3.2 The Indemnified Party or the Purchaser Indemnitee shall not negotiate, settle, compromise or pay (except in the case of payment of a judgementjudgment) Indemnity Claim relates to an alleged liability to any other person (hereinafter, in this section, called a “Third Party Liability Liability”) as to which it proposes to assert an Indemnity Claim, except with the prior consent of the Indemnifying Party or the Vendor each Indemnitor (which consent shall not be unreasonably withheld or delayed), unless there is a reasonable possibility that such the Third Party Liability may will materially and adversely affect the Purchased Assets Condition of the Business or the Indemnified Party or the PurchaserIndemnitee, in which case the Indemnified Party or the Purchaser Indemnitee shall have the right, after notifying the Indemnifying Party or the Vendoreach Indemnitor, to negotiate, settle, compromise or pay such Third Party Liability without prejudice to its rights of indemnification hereunder. The Indemnified Party or the Purchaser shall notify the Indemnifying Party or the Vendor within one (1) week of any third party claims being asserted.
8.3.4. 8.3.3 With respect to any Third Party Liability, provided either Indemnitor first admits the Indemnifying Party or the Vendor first admit the Indemnified Party's or the Purchaser's Indemnitee’s right to indemnification for the amount of such Third Party Liability which may at any time be determined or settled, then, then in any legal, administrative or other proceedings in connection with the matters forming the basis of the Third Party Liability, the following procedures will apply:
8.3.4.1. (a) except as contemplated by subparagraph 8.3.4.3 of this section(c) below, the Indemnifying Party or the Vendor Indemnitor will have the right to assume carriage of the compromise or settlement of the Third Party Liability and the conduct of any related legal, administrative or other proceedings, but the Indemnified Party or the Purchaser Indemnitee shall have the right and shall be given the opportunity to participate in the defence of the Third Party Liability, to consult with the Indemnifying Party or the Vendor Indemnitor in the settlement of the Third Party Liability and the conduct of related legal, administrative and other proceedings (including consultation with counsel) and to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Indemnifying Party or the Vendor each Indemnitor and the Indemnified Party or the Purchaser Indemnitee shall be retained by the Indemnifying Party or the VendorIndemnitor;
8.3.4.2. the Indemnifying (b) each Party or the Vendor will co-operate with the Indemnified Party or the Purchaser others in relation to the Third Party Liability, will keep it fully advised with respect thereto, will provide it with copies of all relevant documentation as it becomes available, will provide it with access to all records and files relating to the defence of the Third Party Liability and will meet with representatives of the Indemnified Party or the Purchaser other party at all reasonable times to discuss the Third Party Liability; and
8.3.4.3. (c) notwithstanding subparagraphs 8.3.4.1 (a) and (b), the Indemnitor will not settle the Third Party Liability or conduct any legal, administrative or other proceedings in any manner which could, in the reasonable opinion of the Indemnitee, have a material adverse effect on the Condition of the Business or the Indemnitee, except with the prior written consent of the Indemnitee, provided that the Indemnitor’s liability to the Indemnitee as a result of the Indemnity shall not exceed the amount to which the Indemnitor would have been liable if such settlement had occurred.
8.3.4 If, with respect to any Third Party Liability, the Indemnitor does not admit the Indemnitee’s right to indemnification or declines to assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability, then the following provisions will apply:
(a) the Indemnitee, at its discretion, may assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability and may defend or settle the Third Party Liability on such terms as the Indemnitee, acting in good faith, considers advisable, and
(b) any cost, loss, damage or expense incurred or suffered by the Purchaser in the settlement of such Third Party Liability or the conduct of any legal, administrative or other proceedings shall be added to the amount of the Indemnity Claim.
8.3.5 Other than a claim for specific performance or injunctive relief, the provisions of this Article 8 shall apply to any claim for breach of any representation, warranty, covenant or other provision of this Agreement or any agreement, certificate or other document delivered pursuant to this Agreement, excluding the Related Agreements with the intent that all such claims shall be subject to the limitations and other provisions contained in this Article 8.
8.3.6 The amount of the Indemnifying Party’s liability under this Agreement shall be determined taking into account any applicable insurance proceeds, third party recoveries and other savings, including tax savings that reduce the overall impact of the Losses upon the Indemnified Party.
Appears in 1 contract
Provisions Relating to Indemnity Claims. The following provisions will apply to any claim by the Indemnified Party or the Purchaser, whatever the case may be, Purchaser for indemnification by the Indemnifying Party or the Vendor, whatever the case may be, Vendors pursuant to Sections Section 8.1 and 8.2 hereof (an "Indemnity Claim").
8.3.1. (a) Promptly after becoming aware of any matter that may give rise to an Indemnity Claim, the Indemnified Party or the Purchaser will provide to the Indemnifying Party or the Vendor Vendors written notice of the Indemnity Claim specifying (to the extent that information is available) the factual basis for the Indemnity Claim and the amount of the Indemnity Claim or, if an amount is not then determinable, an estimate of the amount of the Indemnity Claim, if an estimate is feasible in the circumstances. Any failure to so notify the Vendors shall not relieve the Vendors from any duty to indemnify and hold harmless which otherwise might exist with respect to such matter unless (and only to that extent) the failure to notify materially prejudices the ability of the Vendors to exercise its right to defend as provided in this Section 8.2, or to the extent that, as a result of the failure, the Vendors were deprived of their right to recover any payment under their applicable insurance coverage or as otherwise directly and materially damaged as a result of such failure.
8.3.2. (b) If an Indemnity Claim relates to an alleged liability of the Corporate Group to any other person (a "Third Party Liability"), including without limitation limitation, any governmental or regulatory body or any taxing authorityGovernmental Authority, which is of a nature such that the Indemnified Party or the Purchaser Corporate Group is required by applicable law Applicable Law to make a payment to a third party before the relevant procedure involving that other person for challenging the existence or quantum of the alleged liability can be implemented or completed, then the Indemnified Party or the Purchaser may, notwithstanding the provisions of sections 8.3.3. Subsections (c), (d) and 8.3.4 (e) of this sectionSection, make such payment or cause the Corporate Group to make such payment and forthwith demand reimbursement for such payment from the Indemnifying Party or the Vendor Vendors in accordance with this Agreement; provided that, if the alleged Third Party Liability as finally determined on completion of settlement negotiations or related legal proceedings is less than the amount which is paid by the Indemnifying Party or the Vendor Vendors in respect of the related Indemnity Claim, then the Indemnified Party Corporate Group or the Purchaser Purchaser, as the case may be, shall forthwith following the final determination pay to the Indemnifying Party or the Vendor Vendors the amount by which the amount of the Third Party Liability as finally determined is less than the amount which is so paid by the Indemnifying Party or the VendorVendors.
8.3.3. (c) The Indemnified Party or the Purchaser shall not negotiate, settle, compromise or pay (except in the case of payment of a judgementjudgment) any Third Party Liability as to which it proposes to assert an Indemnity Claim, except with the prior written consent of the Indemnifying Party or the Vendor Vendors (which consent shall not be unreasonably withheld or delayed), unless (i) there is a reasonable possibility that such Third Party Liability may materially and adversely affect the Purchased Assets Business or the Indemnified Condition of the Corporate Group, or (ii) the Vendors have not diligently commenced the defense against such Third Party or the PurchaserLiability, in which case the Indemnified Party or the Purchaser shall have the right, after notifying the Indemnifying Party or the VendorVendors, to negotiate, settle, compromise or pay such Third Party Liability without prejudice to its rights of indemnification hereunder. The Indemnified Party or the Purchaser shall notify the Indemnifying Party or the Vendor within one (1) week of any third party claims being asserted.
8.3.4. (d) With respect to any Third Party Liability, provided the Indemnifying Party or the Vendor Vendors first admit the Indemnified Party's or the Purchaser's right to indemnification for the amount of such Third Party Liability which may at any time be determined or settled, then, in any legal, administrative or other proceedings in connection with the matters forming the basis of the Third Party Liability, the following procedures will apply:
8.3.4.1. (i) except as contemplated by subparagraph 8.3.4.3 Paragraphs (iii) and (iv) of this sectionSubsection 8.2(d), the Indemnifying Party or the Vendor Vendors will have the right to assume carriage of the compromise or settlement of the Third Party Liability and the conduct of any related legal, administrative or other proceedings, but the Indemnified Party or the Purchaser Corporate Group shall have the right and shall be given the opportunity to participate in the defence of the Third Party Liability, to consult with the Indemnifying Party or the Vendor Vendors in the settlement of the Third Party Liability and the conduct of related legal, administrative and other proceedings (including consultation with counsel) and to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Indemnifying Party or the Vendor Vendors and the Indemnified Party or the Purchaser Corporate Group shall be retained by the Indemnifying Party or Vendors.
(ii) the Vendor;
8.3.4.2. the Indemnifying Party or the Vendor Vendors will co-operate cooperate with the Indemnified Party or the Purchaser in relation to the Third Party Liability, will keep it fully advised with respect thereto, will provide it with copies of all relevant documentation as it becomes available, will provide it with access to all records and files relating to the defence of the Third Party Liability and will meet with representatives of the Indemnified Party or the Purchaser at all reasonable times to discuss the Third Party Liability; and
8.3.4.3. (iii) notwithstanding subparagraphs 8.3.4.1 Paragraphs (i) and 8(ii) of this Subsection 8.2(d), the Vendors will not settle the Third Party Liability or conduct any legal, administrative or other proceedings in any manner which could, in the reasonable opinion of the Purchaser, have a material adverse effect on the Business or the Condition of the Corporate Group, except with the prior written consent of the Purchaser; and
(iv) notwithstanding Paragraphs (i), (ii) and (ii) of this Subsection 8.2(d), the Vendors will not settle the Third Party Liability unless:
A. the Purchaser receives, as part of the compromise and settlement, a legally binding and enforceable unconditional satisfaction or release, which is in form and substance satisfactory to the Purchaser, acting reasonably; and
B. the Third Party Liability and any claim or liability of the Purchaser with respect thereto is being fully satisfied because of the compromise and settlement and the Purchaser is being released from any and all obligations or liabilities it may have with respect to the Third Party Liability and any claim or liability which may arise in respect thereof to other persons as a result of the claim being asserted against such other persons by the person making the Third Party Liability claim.
(e) If, with respect to any Third Party Liability, the Vendors do not admit the Purchaser's right to indemnification or decline to assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability, then the following provisions will apply:
(i) the Purchaser, at its discretion, may assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability and may defend or settle the Third Party Liability on such terms as the Purchaser, acting in good faith, considers advisable; and
(ii) any cost, loss, damage or expense incurred or suffered by the Purchaser and the Corporate Group in the settlement or defence of such Third Party Liability or the conduct of any legal, administrative or other proceedings shall be added to the amount of the Indemnity Claim.
Appears in 1 contract
Samples: Share Purchase Agreement (Compass Minerals International Inc)
Provisions Relating to Indemnity Claims. The following provisions will apply to any claim by the Indemnified Party Parties (or the Purchaser, whatever the case may be, any of them) for indemnification by the Indemnifying Party or the Vendor, whatever the case may be, pursuant to Sections 8.1 and 8.2 Section 9.01 or Section 9.02 hereof (hereinafter, in this Section, called an "Indemnity Claim").):
8.3.1. Promptly (a) As soon as reasonably practicable after becoming aware of any matter that may give rise to an Indemnity Claim, the Indemnified Party Parties (or the Purchaser any of them) will provide to the Indemnifying Party or the Vendor other written notice of the Indemnity Claim specifying (to the extent that information is available) the factual basis for the Indemnity Claim and the amount of the Losses in respect of such Indemnity Claim or, if an amount is not then determinable, an estimate of the amount of the such Losses in respect of such Indemnity Claim, Claim if an estimate is feasible in the circumstances, all with reasonable particularity and containing a reference to the provisions of this Agreement in respect of which such Losses are alleged to have occurred.
8.3.2. If (b) With respect to an Indemnity Claim that relates to an alleged liability of the Company to any other person Person (hereinafter, in this Section, called a "Third Party Liability"), including without limitation any governmental or regulatory body provided the Vendors' Representative (on behalf of the Vendors) first admits the right of the Indemnified Parties (or any taxing authority, which is of a nature such that the Indemnified Party or the Purchaser is required by applicable law to make a payment to a third party before the relevant procedure for challenging the existence or quantum of the alleged liability can be implemented or completed, then the Indemnified Party or the Purchaser may, notwithstanding the provisions of sections 8.3.3. and 8.3.4 of this section, make such payment and forthwith demand reimbursement for such payment from the Indemnifying Party or the Vendor in accordance with this Agreement; provided that, if the alleged Third Party Liability as finally determined on completion of settlement negotiations or related legal proceedings is less than the amount which is paid by the Indemnifying Party or the Vendor in respect of the related Indemnity Claim, then the Indemnified Party or the Purchaser shall forthwith following the final determination pay to the Indemnifying Party or the Vendor the amount by which the amount of the Third Party Liability as finally determined is less than the amount which is so paid by the Indemnifying Party or the Vendor.
8.3.3. The Indemnified Party or the Purchaser shall not negotiate, settle, compromise or pay (except in the case of payment of a judgementthem) any Third Party Liability as to which it proposes to assert an Indemnity Claim, except with the prior consent of the Indemnifying Party or the Vendor (which consent shall not be unreasonably withheld or delayed), unless there is a reasonable possibility that such Third Party Liability may materially and adversely affect the Purchased Assets or the Indemnified Party or the Purchaser, in which case the Indemnified Party or the Purchaser shall have the right, after notifying the Indemnifying Party or the Vendor, to negotiate, settle, compromise or pay such Third Party Liability without prejudice to its rights of indemnification hereunder. The Indemnified Party or the Purchaser shall notify the Indemnifying Party or the Vendor within one (1) week of any third party claims being asserted.
8.3.4. With respect to any Third Party Liability, provided the Indemnifying Party or the Vendor first admit the Indemnified Party's or the Purchaser's right to indemnification for the amount of such Third Party Liability (assuming such Third Party Liability is valid) which actual amount may at any time be determined or settled, then, then in any legal, administrative or other proceedings in connection with the matters forming the basis of the Third Party Liability, the following procedures will apply:
8.3.4.1. (i) except as contemplated by subparagraph 8.3.4.3 (iii) of this sectionparagraph, the Indemnifying Party or the Vendor Vendors' Representative will have the right to assume carriage control of the defense, compromise or settlement of the Third Party Liability and the conduct of any related legal, administrative or other proceedings, but the Indemnified Party Parties (or the Purchaser any of them) shall have the right and shall be given the opportunity to participate participate, at its or their sole cost and expense, in the defence defense of the Third Party Liability, to consult with the Indemnifying Party or the Vendor in the settlement of the Third Party Liability and the conduct of related legal, administrative and other proceedings (including consultation with counsel) and to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Indemnifying Party or the Vendor and the Indemnified Party or the Purchaser shall be retained by the Indemnifying Party or the Vendor;
8.3.4.2. (ii) the Indemnifying Party or the Vendor Vendors' Representative will co-operate with the Indemnified Party Parties (or the Purchaser any of them) in relation to the Third Party Liability, Liability and will keep it the Indemnified Parties (or any of them) fully advised with respect thereto; and
(iii) notwithstanding subparagraphs (i) and (ii) of this paragraph, the Vendors' Representative will provide it not settle the Third Party Liability, except with copies the prior written consent of all relevant documentation as it becomes availablethe Indemnified Parties (or any of them), will provide it which consent shall not be unreasonably withheld, conditioned, or delayed; provided, that, if a settlement offer solely for money damages is made by the claimant with access respect to all records and files relating to the defence of the Third Party Liability and will meet such settlement offer provides for the unconditional release of each applicable Indemnified Party from all liabilities and obligations in connection with representatives such Third Party Liability, and the Indemnifying Party notifies the Indemnified Party in writing of the Indemnifying Party's willingness to accept the settlement offer and, subject to the applicable limitations of this Article 9, pay the amount called for by such offer, and the Indemnified Party declines to accept such offer, the Indemnified Party may continue to contest such Third Party Liability, free of any participation by the Indemnifying Party, and the amount of any ultimate liability with respect to such Third Party Liability that the Indemnifying Party has an obligation to pay hereunder shall be limited to the amount of the settlement offer that the Indemnified Party declined to accept.
(c) If, with respect to any Third Party Liability, the Vendors' Representative do not admit the right of the Indemnified Party Parties (or any of them) to indemnification or declines to assume carriage of the Purchaser at all reasonable times settlement or of any legal, administrative or other proceedings relating to discuss the Third Party Liability, then the Indemnified Parties (or any of them), at their discretion, may assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability and may defend the Third Party Liability on such terms as the Indemnified Parties (or any of them), acting in good faith, consider advisable; and
8.3.4.3. notwithstanding subparagraphs 8.3.4.1 and 8provided, that, the applicable Indemnified Parties will not settle the Third Party Liability except with the prior written consent of the Vendors' Representatives, which consent shall not be unreasonably withheld, conditioned, or delayed.
Appears in 1 contract
Samples: Share Purchase Agreement
Provisions Relating to Indemnity Claims. The following provisions will apply applies to any claim brought by the Indemnified Party Chalice Parties or the Purchaser, whatever the case may be, for indemnification by the Indemnifying Party or the Vendor, whatever the case may be, First Mining pursuant to Sections 8.1 and 8.2 Section 7.1 or 7.2 (an "“Indemnity Claim").”):
8.3.1. Promptly (a) As soon as reasonably practicable after becoming aware of any matter that may give rise to an Indemnity Claim, Claim by an indemnified party (an “Indemnified Party”) the Indemnified Party or the Purchaser Part will provide to the Indemnifying Party or the Vendor other written notice to the indemnifying party (an “Indemnifying Party”) of the Indemnity Claim specifying (to the extent that information is available) the factual basis for the Indemnity Claim and the amount of the Indemnity Claim or, if an amount is not then determinable, an estimate of the amount of the Indemnity Claim, Claim if an estimate is feasible in the circumstances.
8.3.2. (b) If an Indemnity Claim relates to an alleged liability of an Indemnified Party to any other person Third Party (a "“Third Party Liability"”), including without limitation any governmental or regulatory body or any taxing authorityGovernmental Entity, which is of a nature such that the Indemnified Party or the Purchaser is required by applicable law Law to make a payment to a third party Third Party before the relevant procedure for challenging the existence or quantum of the alleged liability can be implemented or completed, then the Indemnified Party or the Purchaser Party, may, notwithstanding the provisions of sections 8.3.3. paragraphs (c) and 8.3.4 (d) of this sectionSection, make such payment and forthwith demand reimbursement for such payment from the Indemnifying Party or the Vendor in accordance with this Agreement; Party, provided that, if the alleged liability to the Third Party Liability Party, as finally determined on upon completion of settlement negotiations or related legal proceedings proceedings, is less than the amount which is paid by the Indemnifying Party or the Vendor in respect of the related Indemnity Claim, then the Indemnified Party or the Purchaser shall shall, forthwith following the such final determination determination, pay to the Indemnifying Party or the Vendor the amount by which the amount of the Third Party Liability liability as finally determined is less than the amount which is so paid by the Indemnifying Party or the VendorIndemnified Party, without interest thereon.
8.3.3. The (c) No Indemnified Party or the Purchaser shall not negotiate, settle, compromise or pay (except in the case of payment of a judgementjudgment) any Third Party Liability as to which it proposes to assert an Indemnity Claim, except with the prior consent of the Indemnifying Party or the Vendor (which consent shall not be unreasonably withheld or delayed), unless there is a reasonable possibility that such Third Party Liability may materially and adversely affect the Purchased Assets or Business of the Indemnified Party or the PurchaserParty, in which case the Indemnified Party or the Purchaser shall have the right, after notifying the Indemnifying Party or the VendorParty, to negotiate, settle, compromise or pay such Third Party Liability without prejudice to its rights of indemnification hereunder. The Indemnified Party or the Purchaser shall notify the Indemnifying Party or the Vendor within one (1) week of any third party claims being asserted.
8.3.4. With (d) Except as contemplated in paragraphs (b) or (c) of this Section, with respect to any Third Party Liability, provided the Indemnifying Party or the Vendor first admit the Indemnified Party's or the Purchaser's right to indemnification for the amount of such Third Party Liability which may at any time be determined or settled, then, in any legal, administrative or other proceedings in connection with the matters forming the basis of the Third Party Liability, the following procedures will apply:
8.3.4.1. (i) except as contemplated by subparagraph 8.3.4.3 (iii) of this sectionparagraph, the Indemnifying Party or the Vendor will have the right to assume carriage of the compromise or settlement of the Third Party Liability and the conduct of any related legal, administrative or other proceedings, but the Indemnified Party or the Purchaser shall have the right and shall be given the opportunity to participate in the defence of the Third Party Liability, to consult with the Indemnifying Party or the Vendor in the settlement of the Third Party Liability and the conduct of related legal, administrative and other proceedings (including consultation with counsel) and to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Indemnifying Party or the Vendor and the Indemnified Party or the Purchaser both Parties shall be retained by the Indemnifying Party or provided, however, that it in the Vendorevent there exists a conflict of interest between the Indemnified Party and the Indemnifying Party, the Indemnified Party shall be entitled to appoint its own separate counsel at the Indemnifying Party’s expense;
8.3.4.2. (ii) the Indemnifying Party or the Vendor will co-operate with the Indemnified Party or the Purchaser in relation to the Third Party Liability, will keep it the Indemnified Party fully advised with respect thereto, will provide it the Indemnified Party with copies of all relevant documentation as it becomes available, will provide it the Indemnified Party with access to all records and files relating to the defence of the Third Party Liability and will meet with representatives Representatives of the Indemnified Party or the Purchaser at all reasonable times to discuss the Third Party Liability; and
8.3.4.3. (iii) notwithstanding subparagraphs 8.3.4.1 (i) and 8(ii) of this paragraph, the Indemnifying Party will not settle the Third Party Liability or conduct any legal, administrative or other proceedings in any manner which could, in the reasonable opinion of the Indemnified Party, have a material adverse effect on the Business of the Indemnified Party, except with the prior written consent of the Indemnified Party.
(e) If, with respect to any Third Party Liability, the Indemnifying Party declines to assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability, then the following provisions will apply:
(i) the Indemnified Party, at its discretion, may assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability and may defend or settle the Third Party Liability on such terms as the Indemnified Party, acting in good faith, considers advisable; and
(ii) any cost, loss, damage or expense incurred or suffered by the Indemnified Party in the settlement of such Third Party Liability or the conduct of any legal, administrative or other proceedings, shall be added to the amount of the Indemnity Claim.
Appears in 1 contract
Samples: Share Purchase Agreement (First Mining Finance Corp.)
Provisions Relating to Indemnity Claims. The following provisions will apply to any claim by the Indemnified any Falcon Party or its respective officers, directors, partners, shareholders, employees, agents, representatives, successors and assigns (the Purchaser“Claiming Party”) for indemnification by one or more of the PetroHunter Parties, whatever as the case may be, for indemnification by be (the Indemnifying Party or the Vendor, whatever the case may be“Responding Party”), pursuant to Sections Section 8.1 and 8.2 (an "“Indemnity Claim").”):
8.3.1. Promptly (a) promptly after becoming aware of any matter that may give rise to an Indemnity Claim, the Indemnified Claiming Party or the Purchaser will provide to the Indemnifying Responding Party or the Vendor written notice of the Indemnity Claim specifying (to the extent that information is available) the factual basis for the Indemnity Claim and the amount of the Indemnity Claim or, if an amount is not then determinable, an estimate of the amount of the Indemnity Claim, if an estimate is feasible in the circumstances.;
8.3.2. If (b) if an Indemnity Claim relates to an alleged liability to any other person (a "“Third Party Liability"”), including without limitation any governmental Governmental Authority or regulatory body or any taxing authoritybody, which is of a nature such that the Indemnified Claiming Party or the Purchaser is required by applicable law to make a payment to a third party before the relevant procedure for challenging the existence or quantum of the alleged liability can be implemented or completed, then the Indemnified Claiming Party or the Purchaser may, notwithstanding the provisions of sections 8.3.3. and 8.3.4 subsection (c) of this section, make such payment and forthwith demand reimbursement for such payment from the Indemnifying Responding Party or the Vendor in accordance with this Agreement; provided that, if the alleged Third Party Liability as finally determined on completion of settlement negotiations or related legal proceedings is less than the amount which is paid by the Indemnifying Responding Party or the Vendor in respect of the related Indemnity Claim, then the Indemnified Claiming Party or the Purchaser shall forthwith following the final determination pay to the Indemnifying Responding Party or the Vendor the amount by which the amount of the Third Party Liability as finally determined is less than the amount which is so paid by the Indemnifying Responding Party;
(c) the Claiming Party or the Vendor.
8.3.3. The Indemnified Party or the Purchaser shall not negotiate, settle, compromise or pay (except in the case of payment of a judgementjudgment) any Third Party Liability as to which it proposes to assert an Indemnity Claim, except with the prior written consent of the Indemnifying Responding Party or the Vendor (which consent shall not be unreasonably withheld or delayed), unless there is a reasonable possibility that such Third Party Liability may materially and adversely affect the Purchased Assets or the Indemnified Party or the Purchaser, in which case the Indemnified Party or the Purchaser shall have the right, after notifying the Indemnifying Party or the Vendor, to negotiate, settle, compromise or pay such Third Party Liability without prejudice to its rights of indemnification hereunder. The Indemnified Party or the Purchaser shall notify the Indemnifying Party or the Vendor within one ;
(1d) week of any third party claims being asserted.
8.3.4. With with respect to any Third Party Liability, provided the Indemnifying Responding Party or first admits the Vendor first admit the Indemnified Claiming Party's or the Purchaser's ’s right to indemnification for the amount of such Third Party Liability which may at any time be determined or settled, then, in any legal, administrative or other proceedings in connection with the matters forming the basis of the Third Party Liability, the following procedures will apply:
8.3.4.1. (i) except as contemplated by subparagraph 8.3.4.3 paragraph (iii) of this sectionsubsection, the Indemnifying Responding Party or the Vendor will have the right to assume carriage of the compromise or settlement of the Third Party Liability and the conduct of any related legal, administrative or other proceedings, but the Indemnified Claiming Party or the Purchaser shall have the right and shall be given the opportunity to participate in the defence of the Third Party Liability, to consult with the Indemnifying Responding Party or the Vendor in the settlement of the Third Party Liability and the conduct of related legal, administrative and other proceedings (including consultation with counsel) and to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Indemnifying Responding Party or the Vendor and the Indemnified Claiming Party or the Purchaser shall be retained by the Indemnifying Party or the VendorResponding Party;
8.3.4.2. (ii) the Indemnifying Responding Party or the Vendor will co-operate with the Indemnified Claiming Party or the Purchaser in relation to the Third Party Liability, will keep it fully advised with respect thereto, will provide it with copies of all relevant documentation as it becomes available, will provide it with access to all records and files relating to the defence of the Third Party Liability and will meet with representatives of the Indemnified Claiming Party or the Purchaser at all reasonable times to discuss the Third Party Liability; and
8.3.4.3. (iii) notwithstanding subparagraphs 8.3.4.1 paragraph (i) of this subsection, the Responding Party will not settle the Third Party Liability or conduct any legal, administrative or other proceedings in any manner which could, in the reasonable opinion of the Claiming Party, have a material adverse affect on the Condition of the Business or the Claiming Party, except with the prior written consent of the Claiming Party;
(e) If, with respect to any Third Party Liability, the Responding Party does not admit the Claiming Party’s right to indemnification or declines to assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability, then the following provisions will apply:
(i) the Claiming Party, at its discretion, may assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability and 8may defend or settle the Third Party Liability on such terms as the Claiming Party, acting in good faith, considers advisable; and
(ii) any cost, loss, damage or expense incurred or suffered by the Claiming Party in the settlement or defence of such Third Party Liability or the conduct of any legal, administrative or other proceedings shall be added to the amount of the Indemnity Claim;
(f) The amount of any damage, loss, cost, liability or expense (including reasonable professional fees and disbursements) in connection with any claim for which indemnification is provided hereunder shall be net of any amounts actually received by the Claiming Party under insurance policies with third parties (i.e.: actual insurance policies and not self insurance or retention programs) with respect to such claim and shall be net of any tax benefit received by the Claiming Party in respect of such claim; and
(g) Any liability for indemnification hereunder shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (PetroHunter Energy Corp)
Provisions Relating to Indemnity Claims. The following provisions will apply to any claim by the Indemnified Party or the Purchaser, whatever the case may be, Purchaser for indemnification by the Indemnifying Party or the Vendor, whatever the case may be, Vendors pursuant to Sections 8.1 this Agreement and 8.2 to any claim by the Vendors for indemnification by the Purchaser pursuant to this Agreement (an hereinafter, in this Section 8.3, the party making a claim for indemnification will be referred to as the "Indemnified Party" and the party against whom the claim for indemnification is made will be referred to as the "Indemnifying Party". Any such claim for indemnity will be referred to as the "Indemnity Claim").
8.3.1. (a) Promptly after becoming aware of any matter that may give rise to an Indemnity Claim, the Indemnified Party or the Purchaser will provide to the Indemnifying Party or the Vendor written notice of the Indemnity Claim specifying (to the extent that information is available) the factual basis for the Indemnity Claim and the amount of the Indemnity Claim or, if an amount is not then determinable, an estimate of the amount of the Indemnity Claim, if an estimate is feasible in the circumstances, provided, however, that no delay on the part of the Indemnified Party in notifying the Indemnifying Party will relieve the Indemnifying Party from its obligation to indemnify the Indemnified Party unless (and only to the extent) that the Indemnifying Party is prejudiced by such delay.
8.3.2. (b) If an Indemnity Claim relates to an alleged liability to any other person (hereinafter, in this Section 8.3, called a "Third Party Liability"), including without limitation any governmental or regulatory body or any taxing authority, which is of such a nature such that the Indemnified Party or the Purchaser is required by applicable law to make a payment to a third party before the relevant procedure for challenging the existence or quantum of the alleged liability can be implemented or completed, then the Indemnified Party or the Purchaser may, notwithstanding the provisions of sections 8.3.3. Sections 8.3(c) and 8.3.4 of this section8.3(d), make such payment and forthwith demand reimbursement for such payment from the Indemnifying Party or the Vendor in accordance with this AgreementParty; provided that, if the alleged Third Party Liability liability to the third party as finally determined on upon completion of settlement negotiations or related legal proceedings is less than the amount which that is so paid by the Indemnifying Party or the Vendor in respect of the related Indemnity ClaimParty, then the Indemnified Party or the Purchaser shall will, forthwith following the such final determination and receipt of the overpaid amount from the third party, pay to the Indemnifying Party or the Vendor the amount by which the amount of the Third Party Liability liability, as finally determined determined, is less than the amount which is that was so paid by the Indemnifying Party or the VendorParty.
8.3.3. (c) The Indemnified Party or the Purchaser shall will not negotiate, settle, compromise or pay (except in the case of payment of a judgementjudgment) any Third Party Liability as to in respect of which it has or proposes to assert an Indemnity Claim, except with the prior consent of the Indemnifying Party or the Vendor (which consent shall not be unreasonably withheld or delayed), unless there is a reasonable possibility that such Third Party Liability may materially and adversely affect the Purchased Assets or the Indemnified Party (whether directly or the Purchaserindirectly), in which case the Indemnified Party or the Purchaser shall will have the right, after notifying the Indemnifying Party or the VendorParty, to negotiate, settle, compromise or pay such Third Party Liability without prejudice to its rights of indemnification hereunder. The Indemnified Party or the Purchaser shall notify the Indemnifying Party or the Vendor within one (1) week of any third party claims being asserted.
8.3.4. (d) With respect to any Third Party Liability, provided the Indemnifying Party or the Vendor first admit Party: (i) admits the Indemnified Party's or the Purchaser's right to indemnification for the amount of such Third Party Liability which that may at any time be determined or settledsettled within 10 days of receipt of notice of the Third Party Liability from the Indemnified Party; (ii) provides the Indemnified Party with evidence reasonably satisfactory to the Indemnified Party that the Indemnifying Party will have the financial resources to defend Third Party Liability and fulfill its indemnification obligations hereunder; and (iii) conducts the defense of the Third Party Liability actively and diligently and provided further that: (iv) the action or other proceeding respecting prosecution of the Third Party Liability involves only a claim for money damages and not a claim for equitable relief; and (v) settlement of, thenor an adverse judgment with respect to the Third Party Liability is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party, then in any legal, administrative or other proceedings in connection with the matters forming the basis of the Third Party Liability, the following procedures will apply:
8.3.4.1. (i) except as contemplated by subparagraph 8.3.4.3 of this sectionParagraph 8.3(d)(iii), the Indemnifying Party or the Vendor will have the right to assume carriage of the compromise or settlement of the Third Party Liability and the conduct of any related legal, administrative or other proceedingsproceedings through counsel of its choice reasonably satisfactory to the Indemnified Party, but the Indemnified Party or the Purchaser shall will have the right and shall will be given the opportunity to participate in the defence of the Third Party Liability, to consult with the Indemnifying Party or the Vendor in the settlement of the Third Party Liability and the conduct of related legal, administrative and other proceedings (including consultation with counsel);
(ii) and to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Indemnifying Party or the Vendor and the Indemnified Party or the Purchaser shall be retained by the Indemnifying Party or the Vendor;
8.3.4.2. the Indemnifying Party or the Vendor will co-operate with the Indemnified Party or the Purchaser in relation to the Third Party Liability, will keep it the Indemnified Party fully advised with respect thereto, will provide it the Indemnified Party with copies of all relevant documentation as it becomes available, will provide it the Indemnified Party with access to all records and files relating to the defence of the Third Party Liability and will meet with representatives of the Indemnified Party or the Purchaser at all reasonable times to discuss the Third Party Liability; and
8.3.4.3. (iii) notwithstanding subparagraphs 8.3.4.1 Paragraphs 8.3(d)(i) and 8(ii), the Indemnifying Party will not settle the Third Party Liability or conduct any legal, administrative or other proceedings in any manner that could, in the reasonable opinion of the Indemnified Party have a material adverse affect on the Indemnified Party, except with the prior written consent of the Indemnified Party.
(e) If, with respect to any Third Party Liability, any of the conditions set forth in the opening sentence of Section 8.3(d) is or becomes unsatisfied, or in the event that the Indemnifying Party does not act to diligently defend against such Third Party Liability or declines to assume carriage of the applicable legal, administrational or other proceedings, then the following provisions will apply:
(i) the Indemnified Party, at its discretion, may assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability and may defend or settle the Third Party Liability on such terms as the Indemnified Party, acting in good faith, considers advisable; and
(ii) any cost, lost, damage or expense incurred or suffered by the Indemnified Party in the settlement of such Third Party Liability or the conduct of any legal, administrative or other proceedings will be added to the amount of the Indemnity Claim.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Canwest Petroleum Corp)
Provisions Relating to Indemnity Claims. The following provisions will apply to any claim (the "INDEMNITY CLAIM") by a party seeking indemnification under this Article 8 (the Indemnified Party or the Purchaser, whatever the case may be, for indemnification by the Indemnifying Party or the Vendor, whatever the case may be, pursuant to Sections 8.1 and 8.2 (an "Indemnity ClaimINDEMNIFIED PARTY").
8.3.1. (1) Promptly after becoming aware of any matter that may give rise to an Indemnity Claim, the Indemnified Party or the Purchaser indemnified party will provide to the Indemnifying Party or party against whom a claim for indemnification is sought (the Vendor "INDEMNIFYING PARTY") written notice of the Indemnity Claim specifying (to the extent that information is available) the factual basis for the Indemnity Claim and the amount of the Indemnity Claim or, if an amount is not then determinable, an estimate of the amount of the Indemnity Claim, if an estimate is feasible in the circumstances.
8.3.2. (2) If an Indemnity Claim relates to an alleged liability to any other person (hereinafter, in this section, called a "Third Party LiabilityTHIRD PARTY LIABILITY"), including without limitation any governmental or regulatory body or any taxing authority, which is of a nature such that the Indemnified Party or the Purchaser indemnified party is required by applicable law to make a payment to a third party before the relevant procedure for challenging the existence or quantum of the alleged liability can be implemented or completed, then the Indemnified Party or the Purchaser indemnified party may, notwithstanding the provisions of sections 8.3.3. subsections (3) and 8.3.4 (4) of this section, make such payment and forthwith demand reimbursement for such payment from the Indemnifying Party or the Vendor indemnifying party in accordance with this Agreement; provided that, if the alleged Third Party Liability liability to the third party as finally determined on upon completion of settlement negotiations or related legal proceedings is less than the amount which is paid by the Indemnifying Party or the Vendor indemnifying party in respect of the related Indemnity Claim, then the Indemnified Party or the Purchaser indemnified party shall forthwith following the final determination pay to the Indemnifying Party or the Vendor indemnifying party the amount by which the amount of the Third Party Liability liability as finally determined is less than the amount which is so paid by the Indemnifying Party or the Vendorindemnifying party.
8.3.3. (3) The Indemnified Party or the Purchaser indemnified party shall not negotiate, settle, compromise or pay (except in the case of payment of a judgementjudgment) any Third Party Liability as to which it proposes to assert an Indemnity Claim, except with the prior consent of the Indemnifying Party or the Vendor indemnifying party (which consent shall not be unreasonably withheld or delayed), unless there is a reasonable possibility that such Third Party Liability may materially and adversely affect the Purchased Assets Condition of the Business or the Indemnified Party or the Purchaserindemnified party, in which case the Indemnified Party or the Purchaser indemnified party shall have the right, after notifying the Indemnifying Party or the Vendorindemnifying party, to negotiate, settle, compromise or pay such Third Party Liability without prejudice to its rights of indemnification hereunder. The Indemnified Party or the Purchaser shall notify the Indemnifying Party or the Vendor within one (1) week of any third party claims being asserted.
8.3.4. (4) With respect to any Third Party Liability, provided the Indemnifying Party or indemnifying party first admits the Vendor first admit the Indemnified Party's or the Purchaserindemnified party's right to indemnification for the amount of such Third Party Liability which may at any time be determined or settled, then, then in any legal, administrative or other proceedings in connection with the matters forming the basis of the Third Party Liability, the following procedures will apply:
8.3.4.1. (a) except as contemplated by subparagraph 8.3.4.3 clause (c) of this sectionsubsection, the Indemnifying Party or the Vendor indemnifying party will have the right to assume carriage of the compromise or settlement of the Third Party Liability and the conduct of any related legal, administrative or other proceedings, but the Indemnified Party or the Purchaser indemnified party shall have the right and shall be given the opportunity to participate in the defence of the Third Party Liability, to consult with the Indemnifying Party or the Vendor The indemnifying party in the settlement of the Third Party Liability and the conduct of related legal, administrative and other proceedings (including consultation with counsel) and to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Indemnifying Party or the Vendor indemnifying party and the Indemnified Party or the Purchaser indemnified party shall be retained by the Indemnifying Party or the Vendorindemnifying party;
8.3.4.2. the Indemnifying Party or the Vendor (b) The indemnifying party will co-operate with the Indemnified Party or the Purchaser indemnified party in relation to the Third Party Liability, will keep it fully advised with respect thereto, will provide it with copies of all relevant documentation as it becomes available, will provide it with access to all records and files relating to the defence of the Third Party Liability and will meet with representatives of the Indemnified Party or the Purchaser indemnified party at all reasonable times to discuss the Third Party Liability; and
8.3.4.3. (c) notwithstanding subparagraphs 8.3.4.1 clauses (a) and 8(b) of this subsection, the indemnifying party will not settle the Third Party Liability or conduct any legal, administrative or other proceedings in any manner which could, in the reasonable opinion of the indemnified party, have a material adverse affect on the Condition of the Business or the indemnified party, except with the prior written consent of the indemnified party.
(5) If, with respect to any Third Party Liability, the indemnifying party does not admit the indemnified party's right to indemnification or declines to assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability, then the following provisions will apply:
(a) the indemnified party, at its discretion, may assume carriage of the settlement or of any legal, administrative or other proceedings relating to the Third Party Liability and may defend or settle the Third Party Liability on such terms as the indemnified party, acting in good faith, considers advisable; and
(b) any cost, loss, damage or expense incur-red or suffered by the indemnified party in the settlement of such Third Party Liability or the conduct of any legal, administrative or other proceedings shall be added to the amount of the Indemnity Claim.
Appears in 1 contract
Samples: Asset and Share Purchase Agreement (Softquad Software LTD)
