Common use of NOTICE AND DEFENSE OF THIRD Clause in Contracts

NOTICE AND DEFENSE OF THIRD. PARTY CLAIMS. If any Proceeding shall be brought or asserted against a party entitled to indemnification pursuant to SECTIONS 7.1 or 7.2, or any successor thereto (the "INDEMNIFIED PERSON") in respect of which indemnity may be sought under this Article from an indemnifying person or any successor thereto (the "INDEMNIFYING PERSON"), the Indemnified Person shall give prompt written notice of such Proceeding to the Indemnifying Person who shall assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of all expenses; provided, that any delay or failure to so notify the Indemnifying Person shall relieve the Indemnifying Person of its obligations hereunder only to the extent, if at all, that it is prejudiced by reason of such delay or failure. In no event shall any Indemnified Person be required to make any expenditure or bring any cause of action to enforce the Indemnifying Person's obligations and liability under and pursuant to the indemnification obligations set forth in this Article. In addition, actual or threatened action by a Governmental Authority or other Person is not a condition or prerequisite to the Indemnifying Person's obligations under this Article. The Indemnified Person shall have the right to employ separate counsel in any of the foregoing Proceedings and to participate in the defense thereof, but the reasonable fees and expenses of such counsel shall be at the expense of the Indemnified Person unless the Indemnified Person shall in good faith determine that there exist actual or potential conflicts of interest which make representation by the same counsel inappropriate. The Indemnified Person's right to participate in the defense or response to any Proceeding should not be deemed to limit or otherwise modify its rights and obligations under this Article. In the event that the Indemnifying Person, within fifteen (15) days after notice of any such Proceeding, fails to assume the defense thereof, the Indemnified Person shall have the right to undertake the defense, compromise or settlement of such Proceeding for the account of the Indemnifying Person, subject to the right of the Indemnifying Person to assume the defense of such Proceeding with counsel reasonably satisfactory to the Indemnified Person at any time prior to the settlement, compromise or final determination thereof. If the Indemnifying Person assumes the defense of any Proceeding, the Indemnified Person shall, reasonably and in good faith, assist and cooperate in the defense thereof. Anything in this Article to the contrary notwithstanding, the Indemnifying Person shall not, without the Indemnified Person's prior written consent, settle or compromise any Proceeding or consent to the entry of any judgment with respect to any Proceeding for anything other than money damages paid by the Indemnifying Person. The Indemnifying Person may, without the Indemnified Person's prior written consent, settle or compromise any such Proceeding or consent to entry of any judgment with respect to any such Proceeding that requires solely the payment of money damages by the Indemnifying Person and that includes as an unconditional term thereof the release by the claimant or the plaintiff of the Indemnified Person from all liability in respect of such Proceeding.

NOTICE AND DEFENSE OF THIRD. PARTY CLAIMS. If any Proceeding shall be brought or asserted against a party entitled to indemnification pursuant to SECTIONS 7.1 or 7.2, or any successor thereto (the "INDEMNIFIED PERSON") in respect of which indemnity may be sought under this Article from an indemnifying person or any successor thereto (the "INDEMNIFYING PERSON"), the Indemnified Person shall give prompt written notice of such Proceeding to the Indemnifying Person who shall assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of all expenses; provided, that any delay or failure to so notify the Indemnifying Person shall relieve the Indemnifying Person of its obligations hereunder only to the extent, if at all, that it is prejudiced by reason of such delay or failure. In no event shall any Indemnified Person be required to make any expenditure or bring any cause of action to enforce the Indemnifying Person's obligations and liability under and pursuant to the indemnification obligations set forth in this Article. In addition, actual or threatened action by a Governmental Authority or other Person is not a condition or prerequisite to the Indemnifying Person's obligations under this Article. The Indemnified Person shall have the right to employ separate counsel in any of the foregoing Proceedings and to participate in the defense thereof, but the reasonable fees and expenses of such counsel shall be at the expense of the Indemnified Person unless the Indemnified Person shall in good faith determine that there exist actual or potential conflicts of interest which make representation by the same counsel inappropriate. The Indemnified Person's right to participate in the defense or response to any Proceeding should not be deemed to limit or otherwise modify its rights and obligations under this Article. In the event that the Indemnifying Person, within fifteen (15) days after notice of any such Proceeding, fails to assume the defense thereof, the Indemnified Person shall have the right to undertake the defense, compromise or settlement of such Proceeding for the account of the Indemnifying Person, subject to the right of the Indemnifying Person to assume the defense of such Proceeding with counsel reasonably satisfactory to the Indemnified Person at any time prior to the settlement, compromise or final determination thereof. If the Indemnifying Person assumes the defense of any Proceeding, the Indemnified Person shall, reasonably and in good faith, assist and cooperate in the defense thereof. Anything in this Article to the contrary notwithstanding, the Indemnifying Person shall not, without the Indemnified Person's prior written consent, settle or compromise any Proceeding or consent to the entry of any judgment with respect to any Proceeding for anything other than money damages paid by the Indemnifying Person. The Indemnifying Person may, without the Indemnified Person's prior written consent, settle or compromise any such Proceeding or consent to entry of any judgment with respect to any such Proceeding that requires solely the payment of money damages by the Indemnifying Person and that includes as an unconditional term thereof the release by the claimant or the plaintiff of the Indemnified Person from all liability in respect of such Proceeding.Indemnifying

NOTICE AND DEFENSE OF THIRD. PARTY CLAIMSParty Claims. If any Proceeding judicial, administrative, arbitration or investigatory proceeding or other proceeding, claim or controversy (collectively, a "Proceeding") shall be brought or asserted under this Article VII against a an indemnified party entitled to indemnification pursuant to SECTIONS 7.1 or 7.2, or any successor thereto (the "INDEMNIFIED PERSONIndemnified Person") in respect of which indemnity may be sought under this Article VII from an indemnifying person or any successor thereto (the "INDEMNIFYING PERSONIndemnifying Person"), the Indemnified Person shall give prompt written notice of such Proceeding to the Indemnifying Person who shall assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of all reasonable expenses; provided, that any delay or failure so to so notify the Indemnifying Person shall relieve the Indemnifying Person of its obligations hereunder only to the extent, if at all, that it is materially prejudiced by reason of such delay or failure. In no event shall any Indemnified Person be required to make any expenditure or bring any cause of action to enforce the Indemnifying Person's obligations and liability Liability under and pursuant to the indemnification obligations indemnifications set forth in this Article. In addition, actual or threatened action by a Governmental Authority or other Person is not a condition or prerequisite to the Indemnifying Person's obligations under this ArticleArticle VII. The Indemnified Person shall have the right to employ separate counsel in any of the foregoing Proceedings and to participate in the defense thereof, but the reasonable fees and expenses of such counsel shall be at the expense of the Indemnified Person unless the Indemnified Person shall in good faith determine that there exist actual or potential conflicts of interest which make representation by the same counsel inappropriate. The Indemnified Person's right to participate in the defense or response to any Proceeding should not be deemed to limit or otherwise modify its rights and or obligations under this ArticleArticle VII. In the event that the Indemnifying Person, within fifteen twenty (1520) days after notice of any such Proceeding, fails to assume the defense thereof, the Indemnified Person shall have the right to undertake the defense, compromise or settlement of such Proceeding for the account of and at the expense of the Indemnifying Person, subject to the right of the Indemnifying Person to assume the defense of such Proceeding with counsel reasonably satisfactory to the Indemnified Person at any time prior to the settlement, compromise or final determination thereof. If the Indemnifying Person assumes the defense of any Proceeding, the Indemnified Person shall, reasonably and in good faith, assist and cooperate in the defense thereof. Anything in this Article VII to the contrary notwithstanding, the Indemnifying Person shall not, without the Indemnified Person's prior written consentconsent (which consent shall not be unreasonably withheld), settle or compromise any Proceeding or consent to the entry of any judgment with respect to any Proceeding for anything other than money damages paid by the Indemnifying Person. The Indemnifying Person mayProceeding; provided, without however, the Indemnified Person's prior written consent, settle consent is not required if (A) there is no finding or compromise any such Proceeding or consent to entry admission of any judgment with respect violation of law, rule, regulation or other legal requirement or any violation of the rights of any person and no effect on any other claims that may be made against the Indemnified Person, (B) the Indemnified Person receives as part of such settlement a legal, binding and enforceable unconditional satisfaction and/or release, in form and substance reasonably satisfactory to it, providing that any such Proceeding that requires solely the payment of money damages by the Indemnifying Person and that includes as an unconditional term thereof the release by the claimant or the plaintiff claimed liability of the Indemnified Person from all liability in with respect thereto is being fully satisfied by reason of such Proceedingcompromise or settlement and that the Indemnified Person is being released from any and all obligations or liabilities it may have with respect thereto, and (C) the sole relief provided is monetary damages that are paid in full by the Indemnifying Person.

NOTICE AND DEFENSE OF THIRD. PARTY CLAIMS. If CLAIMS ---------------------------------------- Promptly after the earlier of receipt of (i) notice that a third party has commenced an Action against or otherwise involving any Proceeding shall be brought Indemnified Party or asserted (ii) information from a third party alleging the existence of a claim against a party entitled an Indemnified Party, in either case, with respect to which indemnification pursuant to SECTIONS 7.1 or 7.2, or any successor thereto (the "INDEMNIFIED PERSON") in respect of which indemnity may be sought under Article V of this Article from an indemnifying person or any successor thereto Agreement (the a "INDEMNIFYING PERSONThird-Party Claim"), the Indemnified Person Party shall give prompt the Indemnifying Party written notice of the Third-Party Claim. The failure of the Indemnified Party to give notice as provided in this Section 5.3 shall not relieve the Indemnifying Party of its obligations under this Agreement, except to the extent that the Indemnifying Party is materially prejudiced by the failure to give notice. Within 30 days after receipt of that notice, the Indemnifying Party may (i) at its option, elect to assume and control the defense of that Third-Party Claim at its sole cost and expense by giving written notice to that effect to the Indemnified Party, or (ii) object to the claim for indemnification set forth in the notice delivered by the Indemnified Party pursuant to the first sentence of this Section 5.3; provided, that if the Indemnifying Party does not within that 30-day period give the Indemnified Party written notice objecting to that indemnification claim and setting forth the grounds for the objection(s), the Indemnifying Party shall be deemed to have acknowledged its liability for that indemnification claim. If the Indemnifying Party has acknowledged liability and elected to assume the defense of a Third-Party Claim, (x) the defense shall be conducted by counsel retained by the Indemnifying Party and reasonably satisfactory to the Indemnified Party, provided that the Indemnified Party shall have the right to participate in those proceedings and to be represented by counsel of its own choosing at the Indemnified Party's sole cost and expense unless (i) the employment thereof has been specifically authorized by the Indemnifying Party in writing, (ii) such Proceeding Indemnified Party shall have been advised by counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnifying Person who shall Party and in the reasonable judgement of such counsel it is advisable for such Indemnified Party to employ separate counsel or (iii) the Indemnifying Party has failed to assume the defense thereof, including the employment of such action and employ counsel reasonably satisfactory to the Indemnified Person and the payment of all expenses; providedParty, that any delay or failure to so notify in which case, if such Indemnified Party notifies the Indemnifying Person shall relieve the Indemnifying Person of its obligations hereunder only to the extent, if at all, Party in writing that it is prejudiced by reason of such delay or failure. In no event shall any Indemnified Person be required to make any expenditure or bring any cause of action to enforce the Indemnifying Person's obligations and liability under and pursuant to the indemnification obligations set forth in this Article. In addition, actual or threatened action by a Governmental Authority or other Person is not a condition or prerequisite to the Indemnifying Person's obligations under this Article. The Indemnified Person shall have the right elects to employ separate counsel in any of the foregoing Proceedings and to participate in the defense thereof, but the reasonable fees and expenses of such counsel shall be at the expense of the Indemnified Person unless the Indemnified Person shall in good faith determine that there exist actual or potential conflicts of interest which make representation by the same counsel inappropriate. The Indemnified Person's right to participate in the defense or response to any Proceeding should not be deemed to limit or otherwise modify its rights and obligations under this Article. In the event that Indemnifying Party, the Indemnifying Person, within fifteen (15) days after notice of any such Proceeding, fails to assume the defense thereof, the Indemnified Person Party shall not have the right to undertake the defense, compromise or settlement of such Proceeding for the account of the Indemnifying Person, subject to the right of the Indemnifying Person to assume the defense of such Proceeding with counsel reasonably satisfactory to action on behalf of such Indemnified Party and (y) the Indemnifying Party may settle or compromise the Third-Party Claim without the prior written consent of the Indemnified Person at Party so long as any time settlement or compromise of the Third-Party Claim includes an unconditional release of the Indemnified Party from all claims that are the subject of that Third-Party Claim; provided, that the Indemnifying Party may not agree to any such settlement or compromise pursuant to which any remedy or relief, other than monetary damages for which the Indemnifying Party shall be responsible under this Agreement, shall be applied to or against the Indemnified Party, without the prior to written consent of the settlementIndemnified Party, compromise or final determination thereofwhich consent shall not be unreasonably withheld. If the Indemnifying Person assumes Party does not assume the defense of any Proceedinga Third-Party Claim for which it has acknowledged liability for indemnification hereunder, the Indemnified Person shall, reasonably and Party will act in good faith, assist and cooperate in the defense thereof. Anything in this Article to the contrary notwithstanding, the Indemnifying Person shall not, without the Indemnified Person's prior written consent, settle or compromise any Proceeding or consent to the entry of any judgment faith with respect to any Proceeding that Third-Party Claim and may require the Indemnifying Party to reimburse it on a current basis for anything other than money damages paid its reasonable expenses of investigation, reasonable attorney's fees and reasonable out-of-pocket expenses incurred in investigating and defending against that Third-Party Claim and the Indemnifying Party shall be bound by the result obtained with respect to that claim by the Indemnified Party; provided, that the Indemnifying PersonParty shall not be liable for any settlement or compromise of any Third-Party Claim effected without its consent, which consent shall not be unreasonably withheld. The Indemnifying Person may, without Party shall pay to the Indemnified Person's prior written consentParty in cash the amount, settle or compromise any such Proceeding or consent to entry of any judgment with respect to any such Proceeding that requires solely the payment of money damages by the Indemnifying Person and that includes as an unconditional term thereof the release by the claimant or the plaintiff of if any, for which the Indemnified Person from all liability in respect of such ProceedingParty is entitled to be indemnified under this Agreement within 15 days after that Third-Party Claim has been Finally Determined.

NOTICE AND DEFENSE OF THIRD. PARTY CLAIMS. If any Proceeding shall be brought or asserted under this Article VI against a party entitled to claiming indemnification pursuant to SECTIONS 7.1 or 7.2under this Agreement (for purposes of this Section 6.4, or any successor thereto (the an "INDEMNIFIED PERSONIndemnified Party") in respect of which indemnity may be sought under this Article from the party from whom indemnification is sought (for purposes of this Section 6.4, an indemnifying person or any successor thereto (the "INDEMNIFYING PERSONIndemnifying Party"), the Indemnified Person Party shall give prompt written notice of such Proceeding to the Indemnifying Person Party who shall assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Person Party and the payment of all expenses; provided, that any delay or failure so to so notify the Indemnifying Person Party shall relieve the Indemnifying Person Party of its obligations hereunder only to the extent, if at all, that it is prejudiced by reason of such delay or failure. In no event shall any Indemnified Person Party be required to make any expenditure or bring any cause of action to enforce the Indemnifying PersonParty's obligations and liability under and pursuant to the indemnification obligations indemnifications set forth in this Article. In addition, actual or threatened action by a Governmental Authority or other Person is not a condition or prerequisite to the Indemnifying PersonParty's obligations under this Article. The Indemnified Person Party shall have the right to employ separate counsel in any of the foregoing Proceedings and to participate in the defense thereof, but the reasonable fees and expenses of such counsel shall be at the expense of the Indemnified Person Party unless the Indemnified Person Party shall in good faith determine that there exist actual or potential conflicts of interest which make representation by the same counsel inappropriate. The Indemnified PersonParty's right to participate in the defense or response to any Proceeding should not be deemed to limit or otherwise modify its rights and the Indemnifying Party's obligations under this Article. In the event that the Indemnifying PersonParty, within fifteen (15) five days after notice of any such Proceeding, fails to assume the defense thereof, the Indemnified Person Party shall have the right to undertake the defense, compromise or settlement of such Proceeding for the account of the Indemnifying PersonParty, subject to the right of the Indemnifying Person Party to assume the defense of such Proceeding with counsel reasonably satisfactory to the Indemnified Person Party at any time prior to the settlement, compromise or final determination thereof. If the Indemnifying Person assumes the defense of any Proceeding, the Indemnified Person shall, reasonably and in good faith, assist and cooperate in the defense thereof. Anything in this Article VI to the contrary notwithstanding, the Indemnifying Person Party shall not, without the Indemnified PersonParty's prior written consent, settle or compromise any Proceeding or consent to the entry of any judgment with respect to any Proceeding for anything other than money damages paid by the Indemnifying PersonParty. The Indemnifying Person Party may, without the Indemnified PersonParty's prior written consent, settle or compromise any such Proceeding or consent to entry of any judgment with respect to any such Proceeding that requires solely the payment of money damages by the Indemnifying Person Party and that includes as an unconditional term thereof the release by the claimant or the plaintiff of the Indemnified Person Party from all liability in respect of such Proceeding.

NOTICE AND DEFENSE OF THIRD. PARTY CLAIMSParty Claims. If any Proceeding action, claim or proceeding shall be brought or asserted under this Section 14 against a an indemnified party entitled to indemnification pursuant to SECTIONS 7.1 or 7.2, or any successor thereto (the "INDEMNIFIED PERSONIndemnified Person") in respect of which indemnity may be sought under this Article Section 14 from an indemnifying person or any successor thereto (the "INDEMNIFYING PERSONIndemnifying Person"), the Indemnified Person shall give prompt written notice of such Proceeding action or claim to the Indemnifying Person who shall assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of all expenses; provided, that any delay or failure to so notify the Indemnifying Person shall relieve the Indemnifying Person of its obligations hereunder only to the extent, if at all, that it is prejudiced by reason of such delay or failure. In no event shall any Indemnified Person be required to make any expenditure or bring any cause of action to enforce the Indemnifying Person's obligations and liability under and pursuant to the indemnification obligations set forth in this Article. In addition, actual or threatened action by a Governmental Authority or other Person is not a condition or prerequisite to the Indemnifying Person's obligations under this Article. The Indemnified Person shall have the right to employ separate counsel in any of the foregoing Proceedings actions, claims or proceedings and to participate in the defense thereof, but the reasonable fees and expenses of such counsel shall be at the expense of the Indemnified Person unless both the Indemnified Person shall and the Indemnifying Person are named as parties and in good faith determine that there exist the opinion of counsel for the Indemnified Person common counsel would be inappropriate due to actual or potential conflicts of interest which make representation by between the same counsel inappropriate. The Indemnified Person's right to participate in the defense or response to any Proceeding should not be deemed to limit or otherwise modify its rights and obligations under this ArticleParties. In the event that the Indemnifying Person, within fifteen (15) ten days after notice of any such Proceedingaction or claim, fails to assume the defense thereof, the Indemnified Person shall have the right to undertake the defense, compromise or settlement of such Proceeding action, claim or proceeding for the account of the Indemnifying Person, subject to the right of the Indemnifying Person to assume assume, at its expense, the defense of such Proceeding action, claim or proceeding with counsel reasonably satisfactory to the Indemnified Person at any time prior to the settlement, compromise or final determination thereof. If the Indemnifying Person assumes the defense of any Proceeding, the Indemnified Person shall, reasonably and in good faith, assist and cooperate in the defense thereof. Anything in this Article Section 14 to the contrary notwithstanding, the Indemnifying Person shall not, without the Indemnified Person's prior written consent, settle or compromise any Proceeding action or claim or consent to the entry of any judgment with respect to any Proceeding action, claim or proceeding for anything other than money damages paid by the Indemnifying Person. The Indemnifying Person may, without the Indemnified Person's prior written consent, settle or compromise any such Proceeding action, claim or proceeding or consent to entry of any judgment with respect to any such Proceeding action or claim that requires solely the payment of money damages by the Indemnifying Person and that includes as an unconditional term thereof the release by the claimant or the plaintiff of the Indemnified Person from all liability in with respect of to such Proceedingaction, claim or proceeding.

NOTICE AND DEFENSE OF THIRD. PARTY CLAIMS. If Promptly following the earlier of (a) receipt of notice of the commencement by a third party of any Proceeding shall be brought Action against or asserted otherwise involving any Indemnified Party or (b) receipt of information from a third party alleging the existence of a claim against a party entitled an Indemnified Party, in either case, with respect to which indemnification pursuant to SECTIONS 7.1 or 7.2, or any successor thereto (the "INDEMNIFIED PERSON") in respect of which indemnity may be sought under pursuant to this Article from an indemnifying person or any successor thereto Agreement (the a "INDEMNIFYING PERSONThird- Party Claim"), the Indemnified Person Party shall give prompt the Indemnifying Party written notice thereof. The failure of the Indemnified Party to give notice as provided in this Section 5.2 shall not relieve the Indemnifying Party of its obligations under this Agreement, except to the extent that the Indemnifying Party is prejudiced by such failure to give notice. Within 30 days after receipt of such Proceeding notice, the Indemnifying Party may (a) by giving written notice thereof to the Indemnifying Person who shall Indemnified Party, acknowledge liability for, and at its option elect to assume the defense thereofof, including the employment of counsel reasonably satisfactory such Third-Party Claim at its sole cost and expense or (b) object to the claim of indemnification set forth in the notice delivered by the Indemnified Person and Party pursuant to the payment first sentence of all expensesthis Section 5.2; provided, that any delay or failure to so notify if the Indemnifying Person shall relieve Party does not within the same 30-day period give the Indemnified Party written notice objecting to such claim and setting forth the grounds therefor or electing to assume the defense, the Indemnifying Person of its obligations hereunder only to the extent, if at all, that it is prejudiced by reason of such delay or failure. In no event Party shall any Indemnified Person be required to make any expenditure or bring any cause of action to enforce the Indemnifying Person's obligations and liability under and pursuant to the indemnification obligations set forth in this Article. In addition, actual or threatened action by a Governmental Authority or other Person is not a condition or prerequisite to the Indemnifying Person's obligations under this Article. The Indemnified Person shall have the right to employ separate counsel in any of the foregoing Proceedings and to participate in the defense thereof, but the reasonable fees and expenses of such counsel shall be at the expense of the Indemnified Person unless the Indemnified Person shall in good faith determine that there exist actual or potential conflicts of interest which make representation by the same counsel inappropriate. The Indemnified Person's right to participate in the defense or response to any Proceeding should not be deemed to limit or otherwise modify have acknowledged its rights and obligations under this Articleliability for such Third-Party Claim. In the event that Any contest of a Third-Party Claim as to which the Indemnifying Person, within fifteen (15) days after notice of any such Proceeding, fails Party has elected to assume the defense thereof, the Indemnified Person shall have the right to undertake the defense, compromise or settlement of such Proceeding for the account of the Indemnifying Person, subject to the right of the Indemnifying Person to assume the defense of such Proceeding with counsel reasonably satisfactory to the Indemnified Person at any time prior to the settlement, compromise or final determination thereof. If the Indemnifying Person assumes the defense of any Proceeding, the Indemnified Person shall, reasonably and in good faith, assist and cooperate in the defense thereof. Anything in this Article to the contrary notwithstanding, the Indemnifying Person shall not, without the Indemnified Person's prior written consent, settle or compromise any Proceeding or consent to the entry of any judgment with respect to any Proceeding for anything other than money damages paid be conducted by attorneys employed by the Indemnifying Person. The Indemnifying Person may, without the Indemnified Person's prior written consent, settle or compromise any such Proceeding or consent to entry of any judgment with respect to any such Proceeding that requires solely the payment of money damages by the Indemnifying Person and that includes as an unconditional term thereof the release by the claimant or the plaintiff of the Indemnified Person from all liability in respect of such Proceeding.Party and

NOTICE AND DEFENSE OF THIRD. PARTY CLAIMS. If any Proceeding action, claim or proceeding shall be brought or asserted under this Article IX against a an indemnified party entitled to indemnification pursuant to SECTIONS 7.1 or 7.2, or any successor thereto (the "INDEMNIFIED PERSONIndemnified Person") in respect of which indemnity may be sought under this Article IX from an indemnifying person or any successor thereto (the "INDEMNIFYING PERSONIndemnifying Person"), the Indemnified Person shall give prompt written notice of such Proceeding action or claim to the Indemnifying Person who shall assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of all expenses; provided, except that any delay or failure to so notify the Indemnifying Person shall relieve the Indemnifying Person of its obligations hereunder only to the extent, if at all, that it is prejudiced by reason of such delay or failure. In no event shall any Indemnified Person be required to make any expenditure or bring any cause of action to enforce the Indemnifying Person's obligations and liability under and pursuant to the indemnification obligations set forth in this Article. In addition, actual or threatened action by a Governmental Authority or other Person is not a condition or prerequisite to the Indemnifying Person's obligations under this Article. The Indemnified Person shall have the right to employ separate counsel in any of the foregoing Proceedings actions, claims or proceedings and to participate in the defense thereof, but the reasonable fees and expenses of such counsel shall be at the expense of the Indemnified Person unless both the Indemnified Person and the Indemnifying Person are named as parties and the Indemnified Person shall in good faith determine that there exist actual or potential conflicts of interest which make representation by the same counsel is inappropriate. The Indemnified Person's right to participate in the defense or response to any Proceeding should not be deemed to limit or otherwise modify its rights and obligations under this Article. In the event that the Indemnifying Person, within fifteen (15) ten days after notice of any such Proceedingaction or claim, fails to assume the defense thereof, the Indemnified Person shall have the right to undertake the defense, compromise or settlement of such Proceeding action, claim or proceeding for the account of the Indemnifying Person, subject to the right of the Indemnifying Person to assume to the defense of such Proceeding action, claim or proceeding with counsel reasonably satisfactory to the Indemnified Person at any time prior to the settlement, compromise or final determination thereof. If the Indemnifying Person assumes the defense of any Proceeding, the Indemnified Person shall, reasonably and in good faith, assist and cooperate in the defense thereof. Anything in this Article IX to the contrary notwithstanding, the Indemnifying Person shall not, without the Indemnified Person's prior written consent, settle or compromise any Proceeding action or consent to the entry of any judgment with respect to any Proceeding for anything other than money damages paid by the Indemnifying Person. The Indemnifying Person may, without the Indemnified Person's prior written consent, settle claim or compromise any such Proceeding proceeding or consent to entry of any judgment with respect to any such Proceeding action or claim that requires solely the payment of money damages by the Indemnifying Person and that includes as an unconditional term thereof the release by the claimant or the plaintiff of the Indemnified Person from all liability in respect of such Proceedingaction, claim or proceeding. As a condition to asserting any rights under this Article IX each Buyer's Indemnified Person must appoint Buyer, and Seller's Indemnified Person must appoint the Shareholder, as its sole agent for all matters relating to any claim hereunder.

NOTICE AND DEFENSE OF THIRD. PARTY CLAIMS. If Party Claims Promptly following the earlier of (i) receipt of notice of the commencement by a third party of any Proceeding shall be brought Action against or asserted otherwise involving any Indemnified Party or (ii) receipt of information from a third party alleging the existence of a claim against a party entitled an Indemnified Party, in either case, with respect to which indemnification pursuant to SECTIONS 7.1 or 7.2, or any successor thereto (the "INDEMNIFIED PERSON") in respect of which indemnity may be sought under pursuant to this Article from an indemnifying person or any successor thereto Agreement (the a "INDEMNIFYING PERSONThird-Party Claim"), the Indemnified Person Party shall give prompt the Indemnifying Party written notice thereof. The failure of the Indemnified Party to give notice as provided in this Section 3.5 shall not relieve the Indemnifying Party of its obligations under this Agreement, except to the extent that the Indemnifying Party is materially prejudiced by such failure to give notice. Within 15 days after receipt of such Proceeding notice, the Indemnifying Party may (i) by giving written notice thereof to the Indemnifying Person who shall Indemnified Party, acknowledge liability for such indemnification claim and at its option elect to assume the defense thereofof such Third-Party Claim at its sole cost and expense or (ii) object to the claim for indemnification set forth in the notice delivered by the Indemnified Party pursuant to the first sentence of this Section 3.5; provided that if the Indemnifying Party does not within such 15-day period give the Indemnified Party written notice objecting to such indemnification claim and setting forth the grounds therefor, including the employment Indemnified Party shall give the Indemnifying Party an additional notice of its claims for indemnification and if the Indemnifying Party does not give the Indemnified Party written notice objecting to such claims within 10 days after receipt of such additional notice, the Indemnifying Party shall be deemed to have acknowledged its liability for such indemnification claim. If the Indemnifying Party has elected to assume the defense of a Third-Party Claim, (x) the defense shall be conducted by counsel retained by the Indemnifying Party and reasonably satisfactory to the Indemnified Person and Party, provided that the payment of all expenses; provided, that any delay or failure to so notify the Indemnifying Person shall relieve the Indemnifying Person of its obligations hereunder only to the extent, if at all, that it is prejudiced by reason of such delay or failure. In no event shall any Indemnified Person be required to make any expenditure or bring any cause of action to enforce the Indemnifying Person's obligations and liability under and pursuant to the indemnification obligations set forth in this Article. In addition, actual or threatened action by a Governmental Authority or other Person is not a condition or prerequisite to the Indemnifying Person's obligations under this Article. The Indemnified Person Party shall have the right to employ separate counsel to represent such Indemnified Party if, in any such Indemnified Party's reasonable judgment, a conflict of interest between such Indemnified Party and such Indemnifying Party exists in respect of such claim that would make representation of both such parties by one counsel inappropriate, and in such event the foregoing Proceedings and to participate in the defense thereof, but the reasonable fees and expenses of such separate counsel shall be at paid by such Indemnifying Party (if the expense of Indemnifying Party elects to assume such defense, the Indemnified Person unless Party shall have the Indemnified Person shall in good faith determine that there exist actual or potential conflicts of interest which make representation by the same counsel inappropriate. The Indemnified Person's right to participate in the defense or response thereof and to any Proceeding should not be deemed to limit or otherwise modify its rights and obligations under this Article. In the event that the Indemnifying Person, within fifteen (15) days after notice of any such Proceeding, fails to assume the defense thereof, the Indemnified Person shall have the right to undertake the defense, compromise or settlement of such Proceeding for the account of the Indemnifying Personemploy counsel, subject to the right foregoing proviso, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense); and (y) the Indemnifying Party may settle or compromise the Third Party Claim without the prior written consent of the Indemnified Party so long as such settlement includes an unconditional release of the Indemnified Party from all claims that are the subject of such Third Party Claim, provided that the Indemnifying Person Party may not agree to any such settlement pursuant to which any remedy or relief, other than monetary damages for which the Indemnifying Party shall be responsible hereunder, shall be applied to or against the Indemnified Party, without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld. If the Indemnifying Party does not assume the defense of a Third-Party Claim for which it has acknowledged liability for indemnification hereunder, the Indemnified Party may require the Indemnifying Party to reimburse it on a current basis for its reasonable expenses of investigation, reasonable attorneys' fees and reasonable out-of-pocket expenses incurred in defending against such Proceeding Third-Party Claim and the Indemnifying Party shall be bound by the result obtained with counsel reasonably satisfactory respect thereto by the Indemnified Party; provided that the Indemnifying Party shall not be liable for any settlement effected without its consent, which consent shall not be unreasonably withheld. The Indemnifying Party shall pay to the Indemnified Person at any time prior Party in cash the amount, if any, for which the Indemnified Party is entitled to be indemnified hereunder within 15 days after such Third Party Claim has been Finally Determined, in the settlement, compromise or final determination thereof. If case of an indemnity claim as to which the Indemnifying Person assumes Party has acknowledged liability or, in the defense case of any Proceeding, the Indemnified Person shall, reasonably and in good faith, assist and cooperate in the defense thereof. Anything in this Article indemnity claim as to the contrary notwithstanding, which the Indemnifying Person shall notParty has not acknowledged liability, without the Indemnified Personwithin 15 days after such Indemnifying Party's prior written consent, settle or compromise any Proceeding or consent objection to the entry of any judgment with respect to any Proceeding for anything other than money damages paid by the Indemnifying Person. The Indemnifying Person may, without the Indemnified Person's prior written consent, settle or compromise any such Proceeding or consent to entry of any judgment with respect to any such Proceeding that requires solely the payment of money damages by the Indemnifying Person and that includes as an unconditional term thereof the release by the claimant or the plaintiff of the Indemnified Person from all liability in respect of such Proceedinghereunder has been Finally Determined.