Common use of Defense of Claims by Third Parties Clause in Contracts

Defense of Claims by Third Parties. Whenever a claim shall arise for indemnification under this Section 13 (except in respect of Taxes which shall be governed by the provisions of Section 8(g)), the party entitled to indemnification (the "Indemnified Party") shall promptly notify the party from whom indemnification is sought (the "Indemnifying Party") of such claim and, when known, the facts constituting the basis for such claim; provided, however, that in the event of any claim for indemnification hereunder resulting from or in connection with any claim or legal proceedings by a third party, the Indemnified Party shall give such notice thereof to the Indemnifying Party no later than ten (10) days prior to the time any response to the asserted claim is required, if possible. In the event of any such claim for indemnification resulting from or in connection with a claim or legal proceeding by a third party, the Indemnifying Party may, at its sole cost and expense, assume the defense thereof. If an Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall be entitled to select counsel and take all steps necessary in the defense thereof; provided, however, that, no settlement shall be made without the prior written consent of the Indemnified Party (except that if the Indemnified Party shall withhold its consent to any settlement proposed by the Indemnifying Party, the Indemnifying Party shall in no event be deemed for purposes of this Section 13 to have suffered losses, liabilities or damages in connection with such claim or proceeding in excess of the proposed amount of such settlement); and provided further, however, that the Indemnified Party may, at its own expense, participate in any such proceeding with the counsel of its choice. So long as the Indemnifying Party is in good faith defending such claim or proceeding, the Indemnified Party shall not compromise or settle such claim without the prior written consent of the Indemnifying Party. If the Indemnifying Party does not assume the defense of any such claim or litigation in accordance with the terms hereof, the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including , but not limited to, settling such claim or litigation (after giving notice of the same to the Indemnifying Party) on such terms as the Indemnified Party may deem appropriate, and the Indemnifying Party will promptly indemnify the Indemnified Party in accordance with the provisions of this Section 13.

Defense of Claims by Third Parties. Whenever If there is asserted any claim, liability or obligation that in the judgment of a claim shall arise for indemnification under this Section 13 (except in respect of Taxes which shall be governed by the provisions of Section 8(g)), the party entitled to indemnification or person indemnified above (the "“Indemnified Party"”) may give rise to any Indemnified Losses, or if the Indemnified Party determines the existence of the foregoing, whether or not the same shall promptly notify have been asserted, such Indemnified Party shall give the party from whom indemnification indemnity is sought (the "Indemnifying Party"“Indemnitor”) notice within thirty (30) business days of such claim and, when known, the facts constituting the basis for such claim; provided, however, that in the event assertion of any claim for indemnification hereunder resulting from claim, liability or in connection with any claim obligation, or legal proceedings by a third party, the Indemnified Party shall give such notice thereof to the Indemnifying Party no later than within ten (10) business days prior to of receipt of notice of the time any response to the asserted claim is required, if possible. In the event filing of any lawsuit based upon such claim for indemnification resulting from or in connection assertion, or, with respect to a claim or legal proceeding by a third not yet asserted against the Indemnified party, promptly upon the Indemnifying Party may, at its sole cost and expense, assume the defense thereof. If determination by an Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall be entitled to select counsel and take all steps necessary in the defense thereof; provided, however, that, no settlement shall be made without the prior written consent executive officer of the Indemnified Party (except that if of the existence of the same, and shall give the Indemnitor a reasonable opportunity of assuming the defense of such claim, liability or obligation, using counsel reasonably acceptable to the Indemnified Party shall withhold its consent to any settlement proposed by the Indemnifying Party, the Indemnifying Party shall in no event be deemed for purposes of this Section 13 to have suffered losses, liabilities or damages in connection with such claim or proceeding in excess of the proposed amount of such settlement)party; and provided furtherprovided, however, that the Indemnified Party may, at its own expense, shall have the right to participate in any such proceeding with defense, except that if the counsel Indemnified Party retains separate counsel, other than in the event of its choice. So long as a conflict of interest requiring the Indemnifying Party is in good faith defending such claim or proceedingretention of separate counsel, the Indemnified Party shall assume the expense of the separate counsel. Failure by the Indemnified Party to give timely notice pursuant to this Section 11.4 shall not compromise relieve the Indemnitor of its obligations, except to the extent that the Indemnitor is actually prejudiced by such failure to give timely notice. No settlement or settle such claim adjustment shall be made without the Indemnified Party’s prior written consent, which consent shall not be unreasonably withheld. If the Indemnitor fails to contest in good faith any such claim, liability or obligation, the Indemnified party shall have the right to defend, settle or pay the same and pursue its remedies against the Indemnitor hereunder without the participation or consent of the Indemnifying PartyIndemnitor. If The Indemnified Party shall cooperate with the Indemnifying Party does not assume the defense of Indemnitor in any such claim or litigation defense which the Indemnitor elects to assume in accordance with the terms hereof, event the Indemnitor makes such request to the Indemnified Party may defend against and such claim or litigation in such manner as it may deem appropriaterequest is reasonable, including , but not limited to, settling such claim or litigation (after giving notice of provided the same to the Indemnifying Party) on such terms as Indemnitor shall hold the Indemnified Party harmless from all of its out-of-pocket expenses, including attorneys’ fees, incurred in connection with the Indemnified Party’s cooperation. In the event of a disagreement among the parties as to whether any claim, liability or obligation may deem appropriategive rise to an Indemnified Loss, and the Indemnifying Party will promptly indemnify then the Indemnified Party in accordance with shall have the provisions of this Section 13right to defend, settle or pay the same, or to pursue its remedies against Indemnitor hereunder.

Defense of Claims by Third Parties. Whenever a claim shall arise for indemnification under this Section 13 (except in respect a) Upon receipt by an Indemnified Party of Taxes which shall be governed by notice of the provisions of Section 8(g)), the party entitled to indemnification (the "Indemnified Party") shall promptly notify the party from whom indemnification is sought (the "Indemnifying Party") of such claim and, when known, the facts constituting the basis for such claim; provided, however, that in the event commencement of any claim for indemnification hereunder resulting from or in connection with any claim or legal proceedings action by a third partyparty (a “Third-Party Claim”) against it, such Indemnified Party shall, if a claim is to be made against an Indemnifying Party under this ARTICLE 9, give written notice to the Indemnifying Party of the commencement of such Third-Party Claim as soon as practicable, but in no event later than five (5) Business Days after the Indemnified Party shall have been served, but the failure to so notify the Indemnifying Party shall 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 Third-Party Claim is prejudiced by the Indemnified Party’s failure to give such notice. The Indemnified Party shall provide the Indemnifying Party such information with respect to such Third-Party Claim that the Indemnifying Party shall reasonably request. (b) If a Third-Party Claim is brought against an Indemnified Party and it gives proper notice thereof to the Indemnifying Party no later than ten (10) days prior to of the time any response to the asserted claim is required, if possible. In the event commencement of any such claim for indemnification resulting from or in connection with a claim or legal proceeding by a third partyThird-Party Claim, the Indemnifying Party mayshall, subject to the limitations set forth in this Section 9.04, be entitled to control and appoint lead counsel for such defense, in each case at its sole cost and expense, assume for so long as the defense thereof. Indemnifying Party acknowledges that the claims made in such Third-Party Claim are within the scope of and subject to indemnification hereunder. (c) If an the Indemnifying Party assumes the defense of a Third-Party Claim, (i) no compromise, discharge or settlement of, or admission of liability in connection with, such claims may be effected by the Indemnifying Party without the Indemnified Party’s written consent (which consent shall not be unreasonably withheld or delayed) if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third-Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party; and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third-Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party, unless (x) the Indemnifying Party and the Indemnified Party are both named as parties to the proceedings and in the reasonable opinion of counsel to the Indemnified Party, a conflict or potential conflict exists between the Indemnified Party and the Indemnifying Party that would make such separate representation advisable, or (y) the Indemnifying Party fails to provide reasonable assurance to the Indemnified Party of its financial capacity to defend such Third-Party Claim and provide indemnification with respect to such Third-Party Claim; and provided, further, that the Indemnifying Party will not be required to pay for more than one such counsel in any jurisdiction for all Indemnified Parties in connection with any Third-Party Claim. (d) If proper notice is given to an Indemnifying Party of the commencement of any Third-Party Claim and the Indemnifying Party does not, within ten (10) Business Days after the Indemnified Party’s notice is given, give notice to the Indemnified Party of its election to assume the defense of such claim or legal proceedingThird-Party Claim, the Indemnifying Party shall be entitled bound by any determination made in such Third-Party Claim or any compromise or settlement effected by the Indemnified Party. (e) Each party shall cooperate, and cause their respective affiliates to select counsel and take all steps necessary cooperate, in the defense thereof; providedor prosecution of any Third-Party Claim and shall furnish or cause to be furnished such records, howeverinformation and testimony, thatand attend such conferences, no settlement shall discovery proceedings, hearings, trials or appeals, as may be made without the prior written consent of the Indemnified Party reasonably requested in connection therewith. (except that if the f) Each Indemnified Party shall withhold its consent use reasonable efforts to collect any settlement proposed by the Indemnifying Party, amounts available under insurance coverage for any Damages payable under Section 9.02; provided that this Section 9.04 (f) shall not permit the Indemnifying Party shall in no event be deemed for purposes to delay any payment it owes to an Indemnified Party pursuant to ARTICLE 9 of this Section 13 to have suffered losses, liabilities or damages in connection with such claim or proceeding in excess of the proposed amount of such settlement); and provided further, however, that the Indemnified Party may, at its own expense, participate in any such proceeding with the counsel of its choice. So long as the Indemnifying Party is in good faith defending such claim or proceeding, the Indemnified Party shall not compromise or settle such claim without the prior written consent of the Indemnifying Party. If the Indemnifying Party does not assume the defense of any such claim or litigation in accordance with the terms hereof, the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including , but not limited to, settling such claim or litigation (after giving notice of the same to the Indemnifying Party) on such terms as the Indemnified Party may deem appropriate, and the Indemnifying Party will promptly indemnify the Indemnified Party in accordance with the provisions of this Section 13Agreement.

Defense of Claims by Third Parties. Whenever (i) If any claim is made against a claim shall arise for indemnification Party that, if sustained, would give rise to a liability of the other Party under this Agreement, the Party against whom the claim is made shall promptly cause notice of the claim to be delivered to the other Party and, subject to Section 13 (6(d)(ii) shall afford the other Party and its counsel, at the other Party's sole expense, the opportunity to control the defense and settlement of the claim. The failure to provide the notice referred to above shall not relieve the indemnifying party of liability under this Agreement, except in respect to the extent the indemnifying Party has actually been prejudiced by such failure. If any claim is compromised or settled without the consent of Taxes which the indemnifying Party, no liability shall be governed imposed upon the indemnifying party by reason of the provisions of Section 8(g)claim. (ii) Notwithstanding anything to the contrary in 6(d)(i), if the party entitled to indemnification (amount of liability of the "Indemnified Party") shall promptly notify Seller that is asserted by reason of all claims for breach of a representation, warranty or agreement contained in Section 4 hereof exceeds the party from whom indemnification is sought (the "Indemnifying Party") of such claim andprincipal of, when knownand accrued interest on, the facts constituting the basis for such claim; provided, however, that Subordinated Debentures in the event of Fund (as defined in the Escrow Agreement) at any claim for indemnification hereunder resulting from or in connection with any claim or legal proceedings time by a third partymore than $50,000, the Indemnified Party shall give such notice thereof to the Indemnifying Party no later than ten (10) days prior to the time any response to the asserted claim is required, if possible. In the event of any such claim for indemnification resulting from or in connection with a claim or legal proceeding by a third party, the Indemnifying Party mayindemnified Party, at its sole cost and expense, assume the defense thereof. If an Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall be entitled to select counsel assume the defense, compromise and take all steps necessary settlement of such claims (excluding those claims that were asserted earliest and the aggregate liability of the Seller under which does not exceed the principal of, and accrued interest on, the Subordinated Debentures in the defense thereof; providedFund at that time by more than $50,000). Should the Fund at any time or for any reason be depleted, howeverthe Purchaser shall have the right to assume the defense, thatcompromise and settlement of any then pending claims for breach of a representation, no settlement shall be made without the prior written consent agreement or warranty contained in Section 4 of the Indemnified Party (except that if the Indemnified Party shall withhold its consent to any settlement proposed by the Indemnifying Party, the Indemnifying Party shall in no event be deemed for purposes of this Section 13 to have suffered losses, liabilities or damages in connection with such claim or proceeding in excess of the proposed amount of such settlement); and provided further, however, that the Indemnified Party may, at its own expense, participate in any such proceeding with the counsel of its choice. So long as the Indemnifying Party is in good faith defending such claim or proceeding, the Indemnified Party shall not compromise or settle such claim without the prior written consent of the Indemnifying Party. If the Indemnifying Party does not assume the defense of any such claim or litigation in accordance with the terms hereof, the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including , but not limited to, settling such claim or litigation (after giving notice of the same to the Indemnifying Party) on such terms as the Indemnified Party may deem appropriate, and the Indemnifying Party will promptly indemnify the Indemnified Party in accordance with the provisions of this Section 13agreement.

Defense of Claims by Third Parties. Whenever An indemnified party shall give the indemnifying party notice of any matter which an indemnified party has determined has given or could give rise to a claim shall arise for right of indemnification under this Section 13 Agreement, promptly after such determination. The obligations of the indemnifying party under this section 4 with respect to Losses arising from claims of any third party that are subject to the indemnification provided for in this section 4 (except in respect of Taxes which "Third Party Claims") shall be governed by and contingent upon the provisions following additional terms and conditions: If any indemnified party shall receive notice of Section 8(g))any Third Party Claim, the indemnified party entitled to indemnification (shall give the "Indemnified Party") shall promptly notify the indemnifying party from whom indemnification is sought (the "Indemnifying Party") notice of such claim and, when known, Third Party Claim promptly after the facts constituting receipt by the basis for indemnified party of such claimnotice; provided, however, that in the event of any claim for indemnification hereunder resulting from or in connection with any claim or legal proceedings by a third party, the Indemnified Party shall give failure to provide such notice thereof shall not release the indemnifying party from any of its obligations under this section 4, except to the Indemnifying Party no later extent the indemnifying party is prejudiced by such failure, and shall not relieve the indemnifying party from any other obligation or liability that it may have to an indemnified party otherwise than ten (10) days prior to the time any response to the asserted claim is required, if possible. In the event of any such claim for indemnification resulting from or in connection with a claim or legal proceeding by a third party, the Indemnifying Party may, at its sole cost and expense, assume the defense thereofunder this section 4. If an Indemnifying the indemnifying party acknowledges in writing its obligation to indemnify the indemnified party hereunder against any Losses that may result from such Third Party assumes Claims, then the defense of any such claim or legal proceeding, the Indemnifying Party indemnifying party shall be entitled to select counsel assume and take all steps necessary in control the defense thereofof such Third Party Claim at its expense and through counsel of its choice, if the indemnifying party gives prompt notice of its intention to do so to the indemnified party and provides reasonable assurance to the indemnified party of its financial ability to fulfill its indemnification obligations hereunder; provided, however, thatthat if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the judgment of the indemnified party for the same counsel to represent both the indemnified party and the indemnifying party, no settlement then the indemnified party shall be made without entitled to retain its own counsel, in each jurisdiction for which the prior written consent indemnified party determines counsel is required, at the expense of the Indemnified Party indemnifying party (except that if the Indemnified Party shall withhold its consent to any settlement proposed by the Indemnifying Party, the Indemnifying Party shall in no event be deemed for purposes of this Section 13 to have suffered losses, liabilities or damages in connection with such claim or proceeding in excess of the proposed amount of such settlement); and provided furtherit being understood, however, that the Indemnified indemnifying party shall continue nonetheless to control the defense of the Third Party mayClaim). In the event the indemnifying party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the indemnified party shall cooperate with the indemnifying party in such defense and shall cooperate with the indemnifying party in such defense and make available to the indemnifying party, at its own the indemnifying party's expense, participate all witnesses, pertinent records, materials and information in the indemnified party's possession or under the indemnified party's control relating thereto as is reasonably required by the indemnifying party. Similarly, in the event the indemnified party is, directly or indirectly, conducting the defense against any such proceeding Third Party Claim, the indemnifying party shall cooperate with the counsel of its choiceindemnified party in such defense and make available to the indemnified party, at the indemnifying party's expense, all such witnesses, records, materials and information in the indemnifying party's possession or under the indemnifying party's control relating thereto as is reasonably required by the indemnified party. So long as No such Third Party Claim may be settled by the Indemnifying Party is in good faith defending such claim or proceeding, the Indemnified Party shall not compromise or settle such claim indemnified party without the prior written consent of the Indemnifying Partyindemnifying party. If the Indemnifying Party does not assume the defense of any such claim or litigation in accordance with the terms hereof, the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including , but not limited to, settling such claim or litigation (after giving notice of the same to the Indemnifying Party) on such terms as the Indemnified Party may deem appropriate, and the Indemnifying Party will promptly indemnify the Indemnified Party in accordance with the provisions of this Section 13.5. Miscellaneous 5.1

Defense of Claims by Third Parties. Whenever a claim If any Purchaser Indemnitee shall arise for indemnification receive notice of any third party claim, suit, arbitration or other legal proceeding giving rise to indemnity under this Section 13 Agreement (except in respect of Taxes which shall be governed by the provisions of Section 8(g)a “Third Party Claim”), the party entitled to indemnification (Purchaser Indemnitee shall give the "Indemnified Party") shall promptly notify Indemnitor prompt written notice of the party from whom indemnification is sought (the "Indemnifying Party") of such claim and, when known, the facts constituting the basis for such claimsame; provided, however, that in failure to provide such written notice shall not release the event Indemnitor from any of any claim for indemnification hereunder resulting from or in connection with any claim or legal proceedings its obligations under this Article 7, except to the extent (and only to the extent) the Indemnitor is materially prejudiced by such failure. If such Third Party Claim seeks only recovery of a third partysum of money, the Indemnified Party Indemnitor may, but shall give such not be obligated to, upon prompt written notice thereof furnished to the Indemnifying Party no later than ten (10) days prior to the time any response to the asserted claim is required, if possible. In the event of any such claim for indemnification resulting from or in connection with a claim or legal proceeding by a third party, the Indemnifying Party may, at its sole cost and expensePurchaser Indemnitee, assume the defense thereof. If an Indemnifying Party assumes the defense of any such claim claim, suit, arbitration or legal other proceeding, with counsel reasonably satisfactory to the Indemnifying Party Purchaser Indemnitee, if the Indemnitor acknowledges to the Purchaser Indemnitee in writing its obligations to indemnify the Purchaser Indemnitee with respect to all elements of such claim. If the Indemnitor furnishes such written acknowledgment, the Indemnitor will be entitled to assume and control the defense of such claim, suit, arbitration or other or proceeding, and the Purchaser Indemnitee shall be entitled to select participate in (but not control) the defense of any such action, with its own counsel and take all steps necessary in at its own expense. The notice to the defense thereof; providedIndemnitor shall specify, howeverif known, that, no settlement the amount or an estimate of the amount of the liability arising therefrom. Neither the Indemnitor nor the Purchaser Indemnitee shall be made settle or compromise any claim by a third party without the prior written consent of the Indemnified Party other party (except that if the Indemnified Party shall withhold its consent to any settlement proposed by the Indemnifying Party, the Indemnifying Party shall in no event be deemed for purposes of this Section 13 to have suffered losses, liabilities or damages in connection with such claim or proceeding in excess of the proposed amount of such settlement); and provided further, however, that the Indemnified Party may, at its own expense, participate in any such proceeding with the counsel of its choice. So long as the Indemnifying Party is in good faith defending such claim or proceeding, the Indemnified Party which shall not compromise or settle such claim without the prior written consent of the Indemnifying Partybe unreasonably withheld). If the Indemnifying Party Indemnitor does not assume the defense of any such claim claim, suit, arbitration or litigation in accordance with other proceeding as provided above, (a) the terms hereof, the Indemnified Party Purchaser Indemnitee may defend against such claim or litigation the same, in such manner as it may deem appropriateappropriate and at the Indemnitor’s cost and expense, including including, but not limited towithout limitation, settling such claim or litigation (after giving notice of the same matter; provided that such settlement shall be subject to the Indemnifying Party) on such terms as the Indemnified Party may deem appropriateIndemnitor’s prior written consent (which shall not be unreasonably withheld), and (b) the Indemnifying Indemnitor shall be entitled to participate in (but not control) the defense of such action, with its own counsel and at its own expense. Notwithstanding the foregoing, if a Purchaser Indemnitee determines in good faith that there is a reasonable probability that a Third-Party Claim may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the Purchaser Indemnitee may, by notice to the Indemnitor, assume the exclusive right to defend, compromise, or settle such Third-Party Claim, but the Indemnitor will promptly indemnify the Indemnified Party in accordance with the provisions of this Section 13not be bound by any compromise or settlement effected without its consent (which may not be unreasonably withheld).