Form Apa - Asset Purchase Agreement Page 31
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any Damages arising out of any condition which resulted in an adjustment reflected in the
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Final Purchase Price pursuant to Section 2.4 of this Agreement.
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(b)
By Buyer.
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Buyer shall indemnify Seller and its Representatives and Affiliates, and
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hold each of them harmless from and against any and all Damages incurred by any of
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them in connection with, arising out of or resulting from (i) any breach or inaccuracy of
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any representation or warranty made by Buyer in this Agreement (as updated pursuant to
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Section 6.6 and as in effect on the Closing Date) or (ii) any failure by Buyer to perform in
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a timely manner any agreement, covenant (other than the covenant of Buyer contained in
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Section 6.8) or obligation of Buyer pursuant to this Agreement.
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(c)
Defense of Claims.
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If a claim for Damages (a "Claim") is proposed to be made by a party
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entitled to indemnification hereunder (the "Indemnified Party") against the party from
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whom indemnification is claimed (the "Indemnifying Party"), the Indemnified Party shall
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give written notice (a "Claim Notice") to the Indemnifying Party as soon as practicable
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after the Indemnified Party becomes aware of any fact, condition or event which may
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give rise to Damages for which indemnification may be sought under this Section 10.2.
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If any lawsuit or enforcement action is filed against any party entitled to the benefit of
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indemnity hereunder, written notice thereof shall be given to the Indemnifying Party as
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promptly as practicable (and in any event within ten (10) business days after the service
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of the citation or summons). The failure of any Indemnified Party to give timely notice
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hereunder shall not affect rights to indemnification hereunder, except to the extent that
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the Indemnifying Party demonstrates actual damage caused by such failure.
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Notwithstanding the foregoing, a Claim Notice that relates to a representation or warranty
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that is subject to the survival period set forth in Section 10.1 must be made within such
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survival period, whether or not the Indemnifying Party is prejudiced by any failure to
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give a Claim Notice relating thereto. A Claim Notice shall describe in reasonable detail
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the nature of the Claim, including an estimate of the amount of Damages that have been
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or may be suffered or incurred by the Indemnified Party attributable to such Claim, the
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basis of the Indemnified Party's request for indemnification under the Agreement and all
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information in the Indemnified Party's possession relating to such Claim. After receipt of
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such Claim Notice, the Indemnifying Party shall be entitled, if it so elects, at its own cost,
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risk and expense, (i) to take control of the defense and investigation of such lawsuit or
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action and (ii) to employ and engage attorneys of its own choice to handle and defend the
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same. If the Indemnifying Party fails to assume the defense of such Claim within
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ten (10) business days after receipt of the Claim Notice, the Indemnified Party against
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which such Claim has been asserted will (upon delivering notice to such effect to the
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Indemnifying Party) have the right to undertake, at the Indemnifying Party's cost and
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expense, the defense, compromise or settlement of such Claim on behalf of and for the
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account and risk of the Indemnifying Party; provided, however, that such Claim shall not
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be compromised or settled without the written consent of the Indemnifying Party, which
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consent shall not be unreasonably withheld. The party that assumes the defense of the
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Claim, shall keep the other party reasonably informed of the progress of any such
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