Common use of Claims Involving Third Parties Clause in Contracts

Claims Involving Third Parties. (1) If any third party shall assert a claim against an Indemnified Party with respect to any matter (a "Third Party Claim") which may give rise to a claim for indemnification against any Indemnifying Party under this Section 6, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay within the survival period on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent that) the Indemnifying Party thereby is prejudiced. (2) Any Indemnifying Party will have the right to defend the Indemnified Party against the Third Party Claim with counsel of the Indemnifying Party's choice reasonably satisfactory to the Indemnified Party upon notification to the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice of the Third Party Claim. The Indemnifying Party shall use its best efforts to conduct the defense of the Third Party Claim actively and diligently. (3) The Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in, but not control, the defense of the Third Party Claim, provided, that (1) the Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnifying Party, (2) the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Party, which shall not be withheld unreasonably, and (3) the Indemnified Party will consent to the settlement of any Third Party Claim if such settlement involves only the payment of a monetary sum by the Indemnifying Party. (4) If in the reasonable opinion of the Indemnified Party, any claim seeks relief which would have a material adverse effect on the Indemnified Party, then after written notice to the Indemnifying Party and an opportunity to cure (the right to cure shall not be required to the extent that prompt action on the part of the Indemnified Party shall be reasonably necessary), the Indemnified Party may defend against the claim and the amount of any judgment or settlement and the reasonable costs and expenses of defense shall be included as part of the indemnification obligations of the Indemnifying

Claims Involving Third Parties. (1i) If any third third-party shall assert a claim against an notifies either Party (the "Indemnified Party Party") with respect to any matter (a "Third Third-Party Claim") which that may give rise to a claim for indemnification against any the other Party (the "Indemnifying Party Party") under this Section 6§8 or under §8A, then the Indemnified Party shall promptly notify each the Indemnifying Party thereof in writing; provided, however, that no delay within the survival period on the part of the Indemnified Party in notifying any the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent thatextent) the Indemnifying Party is thereby is prejudiced. (2ii) Any Indemnifying Party will have the right to defend assume the Indemnified Party against defense of the Third Third-Party Claim with counsel of the Indemnifying Party's his, her, or its choice reasonably satisfactory to the Indemnified Party upon notification to the Indemnified Party in writing at any time within fifteen (15) days after the Indemnified Party has given notice of the Third Third-Party Claim. The ; provided, however, that the Indemnifying Party shall use its best efforts to must conduct the defense of the Third Third-Party Claim actively and diligently. (3) The diligently thereafter in order to preserve the rights and defenses of the Indemnified Party; and provided further that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in, but not control, in the defense of the Third Third-Party Claim. (iii) So long as the Indemnifying Party has assumed, providedand is conducting the defense of the Third-Party Claim in accordance with §8(f)(ii) above, that (1A) the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages by the Indemnifying Party and does not impose an injunction or other equitable relief upon the Indemnified Party, and (B) the Indemnified Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third Third-Party Claim without the prior written consent of the Indemnifying Party, Party (2not to be unreasonably withheld). (iv) In the event that the Indemnifying Party will does not assume and conduct the defense of the Third-Party Claim in accordance with §8(f)(ii) above, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment on or enter into any settlement with respect to to, the Third Third-Party Claim without the prior written consent of in any manner he, her, or it may reasonably deem appropriate (and the Indemnified PartyParty need not consult with, which shall not be withheld unreasonablyor obtain any consent from, any Indemnifying Party in connection therewith), and (3B) the Indemnified Party will consent to the settlement of any Third Party Claim if such settlement involves only the payment of a monetary sum by the Indemnifying Party. (4) If in the reasonable opinion of the Indemnified Party, any claim seeks relief which would have a material adverse effect on the Indemnified Party, then after written notice to the Indemnifying Party and an opportunity to cure (the right to cure shall not be required to the extent that prompt action on the part of the Indemnified Party shall be reasonably necessary), will remain responsible for any Adverse Consequences the Indemnified Party may defend against suffer resulting from, arising out of, relating to, in the claim and nature of, or caused by the amount of any judgment or settlement and Third-Party Claim to the reasonable costs and expenses of defense shall be included as part of the indemnification obligations of the Indemnifyingfullest extent provided in this §8.

Claims Involving Third Parties. (1i) If With respect to any third party Third Party Claim, the Sellers’ Agent may notify the Buyer of its decision to participate in the defense of the Buyer or of the relevant Group Company’s interests. With no such notification from the Sellers’ Agent within twenty (20) Business Days of the receipt by the Sellers’ Agent of the Claim Notice, the Sellers shall assert be deemed to have waived such option. (ii) In the event that the Sellers’ Agent gives notice of its intent to participate in the defense of a claim against an Indemnified Third Party Claim, the Sellers’ Agent shall have the right (but not the obligation) to take control of the defense of such Third Party Claim and to select (at the Sellers’ expense) counsel of its choice to represent the Buyer or the relevant Group Company (provided such choice is reasonably acceptable to the Buyer). Sellers’ Agent will not be permitted to assume the defense of Third Party Claims brought by Tax authorities, unless the Third Party Claim primarily involves social security Taxes. (iii) The Buyer shall take (and shall cause the relevant Group Company to take) such actions as the Sellers’ Agent shall consider reasonably necessary or appropriate under the circumstances to defend such Third Party Claim, including: (A) grant to the Sellers’ Agent all necessary powers to represent the Buyer or the relevant Group Company in connection with such Third Party Claim, (B) furnish to the Sellers’ Agent all necessary information and documentation concerning the Buyer or the relevant Group Company and such Third Party Claim, and (C) take into consideration any reasonable instructions of the Sellers’ Agent issued in connection with the defense of such Third Party Claim. (iv) In the event the Sellers’ Agent takes control of a Third Party Claim: (A) the Sellers’ Agent shall keep the Buyer and/or the relevant Group Company duly informed of the litigation and of its developments and shall provide promptly to the Buyer and/or the relevant Group Company any document, evidence or other pleadings issued or received, and give full access to the Buyer and/or the relevant Group Company to all documents necessary to ensure that the proceedings will be properly conducted, (B) a representative appointed by the Buyer and/or the relevant Group Company shall have the right to attend any meeting or telephone call arranged by the Sellers’ Agent with a representative of the relevant Tax authority, and (C) the Sellers’ Agent shall not conclude any settlements, compromises, agreements or withdrawals nor make any voluntary payments with respect to any matter (a "Third Party Claim") which may give rise to a claim for indemnification against any Indemnifying Party under this Section 6, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay within the survival period on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent that) the Indemnifying Party thereby is prejudiced. (2) Any Indemnifying Party will have the right to defend the Indemnified Party against the Third Party Claim with counsel of the Indemnifying Party's choice reasonably satisfactory to the Indemnified Party upon notification to the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice of the Third Party Claim. The Indemnifying Party shall use its best efforts to conduct the defense of the Third Party Claim actively and diligently. (3) The Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in, but not control, the defense of the Third Party Claim, provided, that (1) the Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnifying PartyBuyer and/or the relevant Group Company, which consent shall not be unreasonably withheld or delayed. (2v) The conduct of the defense of a Third Party Claim by the Sellers’ Agent shall not be deemed to constitute an admission by the Sellers of their liability to pay a Refund to the Buyer in respect of any Loss resulting from such Third Party Claim. (vi) In any event, should the Sellers’ Agent participate in the defense of the Third Party Claim or not: (A) the Indemnifying Party will not consent Buyer or any Group Company concerned shall keep the Sellers’ Agent duly informed of the litigation and of its developments and shall provide promptly to the entry Sellers’ Agent any document, evidence or other pleadings issued or received, and give reasonable access to the Sellers’ Agent to all documents necessary to ensure that the proceedings will be properly conducted, (B) a representative appointed by the Sellers’s Agent shall have the right to attend any meeting or telephone call arranged by the Buyer and/or the relevant Group Company with a representative of the relevant Tax authority, and (C) none of the Buyer or any judgment relevant Group Companies shall conclude any settlements, compromises, agreements or enter into withdrawals nor make any settlement voluntary payments with respect to the any Third Party Claim without the prior written consent of the Indemnified PartySellers’ Agent, which consent shall not be unreasonably withheld unreasonably, and or delayed. (3vii) Should the Indemnified Party will consent Buyer or any of the relevant Group Companies not allow the Sellers’ Agent to participate in the settlement of any defense against a Third Party Claim if such settlement involves only or otherwise breaches in any material respect the payment provisions of a monetary sum by this Clause 9.2.4(h), the Indemnifying Party. (4) If in the reasonable opinion of the Indemnified Party, any claim seeks relief which would have a material adverse effect on the Indemnified Party, then after written notice to the Indemnifying Party and an opportunity to cure (the right to cure Buyer shall not be required entitled to receive a Refund from the extent that prompt action on the part Sellers in respect of any Loss resulting from such Third Party Claim. The rights of the Indemnified Party shall Sellers’ Agent under this Clause 9.2.4(h) may be reasonably necessary), exercised by the Indemnified Party may defend against relevant Seller(s) if only one Seller or certain Sellers but not all are involved in the claim and the amount of any judgment or settlement and the reasonable costs and expenses of defense shall be included as part of the indemnification obligations of the IndemnifyingClaim.

Claims Involving Third Parties. 8.9.1 Except with respect to matters set forth in clause (1v) of Section 8.2 (of which Seller already has notice), promptly after receipt by an indemnified party under Section 8.2 or 8.3 of notice of the commencement of any Proceeding against it, such indemnified party will, if a claim is to be made against an indemnifying party under such Section, give notice to the indemnifying party of the commencement of such claim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is materially prejudiced by the indemnifying party's failure to give such notice. 8.9.2 If any third party shall assert a claim Proceeding referred to in Section 8.9.1 is brought against an Indemnified Party indemnified party and it gives notice to the indemnifying party of the commencement of such Proceeding (or the Proceeding is listed in EXHIBIT 8.2), the indemnifying party will be entitled to participate in such Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Proceeding and provide indemnification with respect to such Proceeding), to assume the defense of such Proceeding with counsel satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such Proceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under this Section 8 for any fees of other counsel or any other expenses with respect to the defense of such Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such Proceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a Proceeding, no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (A) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person made by or against the indemnified party, (B) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (C) the indemnified party will have no liability with respect to any matter (a "Third Party Claim") which may give rise compromise or settlement of such claims effected without its consent. If notice is given to a claim for indemnification against any Indemnifying Party under this Section 6, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay within the survival period on the part an indemnifying party of the Indemnified Party in notifying commencement of any Indemnifying Party shall relieve Proceeding and the Indemnifying Party from any obligation hereunder unless (and then solely to the extent that) the Indemnifying Party thereby is prejudiced. (2) Any Indemnifying Party will have the right to defend the Indemnified Party against the Third Party Claim with counsel of the Indemnifying Party's choice reasonably satisfactory to the Indemnified Party upon notification to the Indemnified Party in writing indemnifying party does not, within fifteen (15) twenty days after the Indemnified Party has given indemnified party's notice is given, give notice to the indemnified party of the Third Party Claim. The Indemnifying Party shall use its best efforts election to conduct assume the defense of such Proceeding, the Third Party Claim actively and diligentlyindemnifying party will be bound by any determination made in such Proceeding or any compromise or settlement effected by the indemnified party. (3) The Indemnified Party 8.9.3 Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Proceeding may retain separate co-counsel at adversely affect it or its sole cost and expense and participate inaffiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such Proceeding, but not control, the defense of the Third Party Claim, provided, that (1) the Indemnified Party indemnifying party will not be bound by any determination of a Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). 8.9.4 Seller hereby consents to the entry non-exclusive jurisdiction of any judgment or enter into court in which a Proceeding is brought against any settlement Indemnified Person for purposes of any claim that an Indemnified Person may have under this Agreement with respect to such Proceeding or the Third Party Claim without the prior written consent of the Indemnifying Partymatters alleged therein, (2) the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement and agree that process may be served on Seller with respect to the Third Party Claim without the prior written consent of the Indemnified Party, which shall not be withheld unreasonably, and (3) the Indemnified Party will consent to the settlement of any Third Party Claim if such settlement involves only the payment of a monetary sum by the Indemnifying Party. (4) If claim anywhere in the reasonable opinion of the Indemnified Party, any claim seeks relief which would have a material adverse effect on the Indemnified Party, then after written notice to the Indemnifying Party and an opportunity to cure (the right to cure shall not be required to the extent that prompt action on the part of the Indemnified Party shall be reasonably necessary), the Indemnified Party may defend against the claim and the amount of any judgment or settlement and the reasonable costs and expenses of defense shall be included as part of the indemnification obligations of the Indemnifyingworld.

Claims Involving Third Parties. (1a) If In the event that any third party shall assert Proceedings may be instituted with any Third Party in respect of which the Purchaser may have a claim against an Indemnified Party with respect to any matter Claim (a "Third Party Claim") which may give rise to a claim for indemnification against any Indemnifying Party under this Section 6), then the Indemnified Party Purchaser shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay within keep the survival period on the part Vendors Representative reasonably informed of the Indemnified development of the Third Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent that) the Indemnifying Party thereby is prejudicedClaim. (2b) Any Indemnifying Party will have The Vendors Representative may participate, at its expense, in the right to defend the Indemnified Party against the defense of any Third Party Claim with counsel of its choice, who shall cooperate with the Indemnifying Partycounsel of the Purchaser or the Group Company concerned. The Vendor's choice reasonably satisfactory Representative shall exercise its rights under this Clause 12.5 with moderation, in good faith and taking into account the reasonable interests of the Group Companies. The Vendors Representative shall notify the Purchaser of its intent to participate to the Indemnified defense of such Third Party upon notification to Claim within thirty (30) Business Days from the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice date of receipt of the Third Party ClaimClaim Notice. The Indemnifying Party Failing the receipt by the Purchaser of such notification within such period of time, the Vendors Representative shall use be deemed having waived its best efforts rights to conduct participate to the defense of the given Third Party Claim actively and diligentlyClaim. (3c) The Indemnified Party may retain separate co-counsel at In the case of such a waiver by the Vendors Representative of its sole cost and expense and rights to participate in, but not control, to the defense of the given Third Party Claim, providedthe Purchaser shall be empowered to take any decision as regards the Proceedings with the exception that any transaction, that (1) the Indemnified Party will not consent to the entry of any judgment compromise, or enter into any settlement with respect to similar action regarding the Third Party Claim shall always be subject to the prior consent of the Vendors Representative, such consent not to be unreasonably withheld or delayed by the Vendors Representative. (d) In the event the Vendors Representative gives notice of the Guarantors’ decision to participate in the defense of the interests of the relevant Group Company(ies) within the thirty (30) Business Days period above: (i) the Purchaser shall ensure that the Vendors Representative has access to information and documents which are useful for the defense in the file, the Parties agreeing that the Vendors Representative considers such information and documents as being confidential in nature; (ii) the Purchaser shall ensure that the Vendors Representative is kept informed of each important step of the proceeding, it being specified that (i) the Purchaser shall seek the consent of the Vendors Representative with respect to strategic choices in relation to the defense, and (ii) such consent shall not be unreasonably withheld or delayed by the Vendors Representative; and (iii) the relevant Group Company(ies) shall not compromise, settle, acquiesce or discontinue any claim, financial, legal or administrative proceedings in which it is involved without the prior written consent of the Indemnifying PartyVendors Representative, (2) the Indemnifying Party will such consent not consent to the entry of any judgment be unreasonably withheld or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Party, which shall not be withheld unreasonably, and (3) the Indemnified Party will consent to the settlement of any Third Party Claim if such settlement involves only the payment of a monetary sum delayed by the Indemnifying PartyVendors Representative. (4) If in the reasonable opinion of the Indemnified Party, any claim seeks relief which would have a material adverse effect on the Indemnified Party, then after written notice to the Indemnifying Party and an opportunity to cure (the right to cure shall not be required to the extent that prompt action on the part of the Indemnified Party shall be reasonably necessary), the Indemnified Party may defend against the claim and the amount of any judgment or settlement and the reasonable costs and expenses of defense shall be included as part of the indemnification obligations of the Indemnifying

Claims Involving Third Parties. (1a) If any third party shall assert a claim against an Indemnified Party with With respect to any matter (a "Third Party Claim", the Seller may decide: (i) subject to Seller's acknowledgement set forth in paragraph (b) below, to have exclusive conduct of such Third Party Claim, in which may give rise to a claim for indemnification against any Indemnifying Party under this Section 6, then case the Indemnified Party Seller shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay within adequately take into account the survival period on the part legitimate business interests of the Indemnified Party in notifying any Indemnifying Party Buyer and the Group Companies, acting reasonably, and the Buyer shall relieve the Indemnifying Party from any obligation hereunder unless take (and then solely shall cause the relevant Group Company to take) such actions as the Seller shall consider reasonably necessary or appropriate under the circumstances to defend such Third Party Claim, ensuring that the Buyer or the relevant Group Company shall, if and to the extent that) the Indemnifying Party thereby is prejudiced.legally permissible: (2A) Any Indemnifying Party will have the right to defend the Indemnified Party against the Third Party Claim with counsel of the Indemnifying Party's choice reasonably satisfactory grant to the Indemnified Party upon notification Seller all necessary powers to represent the Indemnified Party Buyer or the relevant Group Company in writing within fifteen (15) days after the Indemnified Party has given notice of the connection with such Third Party Claim. The Indemnifying ; (B) furnish to the Seller all necessary information and documentation concerning the Buyer or the relevant Group Company and such Third Party shall use its best efforts to conduct the defense Claim; (C) follow any reasonable instructions of the Seller issued in connection with the defence of such Third Party Claim actively and diligently.Claim; and (3D) The Indemnified refrain from taking any action likely to jeopardize or interfere with the defence of such Third Party may retain separate co-counsel at its sole cost and expense and participate inClaim, but not control, or (ii) that the defense Buyer shall have the conduct of the Third Party Claim, provided, that in which case: (1A) the Indemnified Party will not consent Seller shall be entitled to participate, with the entry assistance of any judgment counsel of its choice, the costs and expenses of such counsel to be paid by the Seller, in the negotiations and the defence of the Buyer or enter of the relevant Group Company’s interests, (B) any reasonable recommendation made by the Seller in the course of the proceedings shall be duly considered and taken into any settlement with respect account by the Buyer; (C) the Buyer can only be entitled to indemnification following receipt by the Seller of a notice evidencing that the amount of the Third Party Claim without is being due and payable (x) as a result of an immediately enforceable decision or a final judgment not subject to appeal or (y) as a result of the execution of a settlement agreement provided that the Buyer has obtained the prior written consent of the Indemnifying Party, Seller (2which consent shall not be unreasonably withheld or delayed). (b) The conduct of the Indemnifying Party will not consent to the entry defence of any judgment or enter into any settlement with respect to the a Third Party Claim without by the prior written consent Seller, but not its participation to the defence of a Third Party Claim, shall be deemed to constitute an admission by the Indemnified PartySeller of its liability to pay an Indemnification to the Buyer in respect of any Loss resulting from such Third Party Claim, which as the case may be. (c) The Seller shall not be withheld unreasonably, and (3) entitled to take over the Indemnified Party will consent to the settlement conduct of any Third Party Claim if such settlement involves only the payment of a monetary sum by the Indemnifying Party. (4) If in the reasonable opinion of the Indemnified Party, any claim seeks relief which would that could reasonably be expected to have a material adverse effect on the Indemnified Party, then after written notice Group. (d) If the Buyer has not received a notification from the Seller indicating its intention to conduct or to participate to the Indemnifying defence of the Third Party Claim within twenty (20) Business Days of the receipt by the Seller of the corresponding Claim Notice, the Seller shall be deemed to have waived its right to conduct and an opportunity to cure participate to the defence of such Third Party Claim. (e) In any event, the Seller shall have the right to cure conclude any solely monetary settlement or make any monetary voluntary payment with respect to any Third Party Claim without the prior consent of the Buyer, provided that such settlement does not impose any payment obligations of a Group Company, the Buyer or an Affiliate of the Buyer unless such payment obligation is fully and unconditionally remedied by the Seller, any materially adverse condition, restriction or limitation on the operations of Buyer or any of the Group Companies. (f) Should the Buyer or any relevant Group Company not allow the Seller to participate to the defence against a Third Party Claim or otherwise violate any of the provisions of this Clause 11.6, the Buyer shall not be required entitled to indemnification by the Seller in respect of any Loss resulting from such Third Party Claim if the Seller is prejudiced thereby. (g) The costs and expenses incurred by the Buyer and the Group Companies in defending such Third Party Claim constitute a Loss of the Buyer which shall be compensated by the Seller under the Agreement if and to the extent the Third Party Claim relates to a breach of any of the representations and warranties or covenants under the Agreement. The costs and expenses incurred by the Seller in connection with any defence against a Third Party Claim shall be borne by the Seller to the extent that prompt action on the part Third Party Claim relates to a breach of any of the Indemnified Party shall be reasonably necessary), representations and warranties or covenants under the Indemnified Party may defend against Agreement and by the claim and Buyer to the amount extent that no breach of any judgment or settlement and the reasonable costs and expenses of defense shall be included as part of the indemnification obligations of representations and warranties or covenants under the IndemnifyingAgreement was involved.

Claims Involving Third Parties. 8.9.1 Except with respect to matters set forth in clause (1v) of Section 8.2 (of which Seller already has notice), promptly after receipt by an indemnified party under Section 8.2 or 8.3 of notice of the commencement of any Proceeding against it, such indemnified party will, if a claim is to be made against an indemnifying party under such Section, give notice to the indemnifying party of the commencement of such claim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is materially prejudiced by the indemnifying party's failure to give such notice. 8.9.2 If any third party shall assert a claim Proceeding referred to in Section 8.9.1 is brought against an Indemnified Party indemnified party and it gives notice to the indemnifying party of the commencement of such Proceeding (or the Proceeding is listed in Exhibit 8.2), the indemnifying party will be entitled to participate in such Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such Proceeding and provide indemnification with respect to such Proceeding), to assume the defense of such Proceeding with counsel satisfactory to the indemnified party and, after notice from the indemnifying party to the indemnified party of its election to assume the defense of such Proceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under this Section 8 for any fees of other counsel or any other expenses with respect to the defense of such Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such Proceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a Proceeding, no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party's consent unless (A) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person made by or against the indemnified party, (B) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (C) the indemnified party will have no liability with respect to any matter (a "Third Party Claim") which may give rise compromise or settlement of such claims effected without its consent. If notice is given to a claim for indemnification against any Indemnifying Party under this Section 6, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay within the survival period on the part an indemnifying party of the Indemnified Party in notifying commencement of any Indemnifying Party shall relieve Proceeding and the Indemnifying Party from any obligation hereunder unless (and then solely to the extent that) the Indemnifying Party thereby is prejudiced. (2) Any Indemnifying Party will have the right to defend the Indemnified Party against the Third Party Claim with counsel of the Indemnifying Party's choice reasonably satisfactory to the Indemnified Party upon notification to the Indemnified Party in writing indemnifying party does not, within fifteen (15) twenty days after the Indemnified Party has given indemnified party's notice is given, give notice to the indemnified party of the Third Party Claim. The Indemnifying Party shall use its best efforts election to conduct assume the defense of such Proceeding, the Third Party Claim actively and diligentlyindemnifying party will be bound by any determination made in such Proceeding or any compromise or settlement effected by the indemnified party. (3) The Indemnified Party 8.9.3 Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a Proceeding may retain separate co-counsel at adversely affect it or its sole cost and expense and participate inaffiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such Proceeding, but not control, the defense of the Third Party Claim, provided, that (1) the Indemnified Party indemnifying party will not be bound by any determination of a Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). 8.9.4 Seller hereby consents to the entry non-exclusive jurisdiction of any judgment or enter into court in which a Proceeding is brought against any settlement Indemnified Person for purposes of any claim that an Indemnified Person may have under this Agreement with respect to such Proceeding or the Third Party Claim without the prior written consent of the Indemnifying Partymatters alleged therein, (2) the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement and agree that process may be served on Seller with respect to the Third Party Claim without the prior written consent of the Indemnified Party, which shall not be withheld unreasonably, and (3) the Indemnified Party will consent to the settlement of any Third Party Claim if such settlement involves only the payment of a monetary sum by the Indemnifying Party. (4) If claim anywhere in the reasonable opinion of the Indemnified Party, any claim seeks relief which would have a material adverse effect on the Indemnified Party, then after written notice to the Indemnifying Party and an opportunity to cure (the right to cure shall not be required to the extent that prompt action on the part of the Indemnified Party shall be reasonably necessary), the Indemnified Party may defend against the claim and the amount of any judgment or settlement and the reasonable costs and expenses of defense shall be included as part of the indemnification obligations of the Indemnifyingworld.