Common use of Notice and Opportunity to Defend Clause in Contracts

Notice and Opportunity to Defend. In the case of any claim asserted by a third party against a Party entitled to indemnification under this Agreement (the "Indemnified Party"), the Indemnified Party shall give written notice to the Party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought. The Indemnified Party will permit the Indemnifying Party (at the expense of such Indemnifying Party) to assume the defense of any claim or any litigation resulting therefrom, provided that: 1. The counsel for the Indemnifying Party who will conduct the defense of such claim or litigation must be reasonably satisfactory to the Indemnified Party; 2. The Indemnified Party may participate in such defense at such Indemnified Party's expense; and 3. The failure by any Indemnified Party to give notice as provided in this Agreement will not relieve the Indemnifying Party of its indemnification obligation under this Agreement except to the extent that such omission prejudices the Indemnifying Party in its defense of the claim. The Indemnifying Party and the Indemnified Party will cooperate in the defense of any claim or litigation and the records of each will be available to the other with respect to such defense.

Notice and Opportunity to Defend. In case any Claim or litigation which may give rise to any obligation of a party under the case indemnity provisions of any claim asserted by a third party against a Party entitled to indemnification under this Agreement (each an “Indemnifying Party”) shall come to the "attention of the party seeking indemnification hereunder (the “Indemnified Party"”), the Indemnified Party shall give written notice to the Party required to provide indemnification (the "Indemnifying Party") notify in writing promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought. The Indemnified Party will permit the Indemnifying Party of the existence and amount thereof. Failure to give such notice shall not effect the rights of the Indemnified Party hereunder, except to the extent that the Indemnifying Party shall have been materially prejudiced by such failure. The Indemnifying Party shall be entitled to participate in and if (at i) in the expense judgment of the Indemnified Party such claim can properly be resolved by money damages alone and the Indemnifying PartyParty has the financial resources to pay such damages and (ii) the Indemnifying Party admits that this indemnity fully covers the claim or litigation, the Indemnifying Party shall be entitled to assume direct the defense of any claim or any litigation resulting therefromat its expense, provided that: 1. The but such defense shall be conducted by legal counsel for the Indemnifying Party who will conduct the defense of such claim or litigation must be reasonably satisfactory to the Indemnified Party; 2. The Indemnified Party may participate in such defense at such Indemnified Party's expense; and 3. The failure by any Indemnified Party to give notice as provided in this Agreement will not relieve the Indemnifying Party of its indemnification obligation under this Agreement except to the extent that such omission prejudices the Indemnifying Party in its defense of the claim. The Indemnifying Party and the Indemnified Party will cooperate in the defense of any claim or litigation and the records of each will be available to the other with respect to such defense.

Notice and Opportunity to Defend. In the case of any claim asserted by a third Any party against a Party entitled to indemnification be indemnified under this Agreement Article 8 (the "Indemnified Party"), ) shall promptly notify in writing the Indemnified Party shall give written notice to the Party required to provide indemnification indemnifying party (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any matter giving rise to an obligation to indemnify and the Indemnifying Party shall defend such claim as at its expense with counsel of its choice reasonably acceptable to which indemnity the Indemnified Party, provided that the Indemnifying Party may be soughtnot settle any such claim without the consent of the Indemnified Party. The Indemnified Party will permit agrees to cooperate with the Indemnifying Party (at the expense of such Indemnifying Party) and to assume the defense of any claim or any litigation resulting therefrom, provided that: 1. The counsel for make reasonably available to the Indemnifying Party who will conduct any necessary records or documents in the defense possession of such claim or litigation must be reasonably satisfactory to the Indemnified Party; 2Party which are necessary to defend such claim. The If the Indemnifying Party does not defend or settle such claim, the Indemnified Party may participate in such defense at such Indemnified do so without the Indemnifying Party's expense; and 3participation, in which case the Indemnifying Party shall pay the expenses of such defense, and the Indemnified Party may settle or compromise such claim without the Indemnifying Party's consent. The failure by of any Indemnified Party to give notice as provided in this Agreement will herein shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement obligations hereunder except to the extent that such omission prejudices the Indemnifying Party in its defense of the claim. The Indemnifying Party and the Indemnified Party will cooperate in the defense of any claim or litigation and the records of each will be available is actually prejudiced by such failure to the other with respect to such defensegive notice.

Notice and Opportunity to Defend. In the case of any claim asserted by a third The party against a Party entitled to indemnification indemnified under this Agreement Article 12 (the "Indemnified Party"), ) shall promptly notify in writing the Indemnified Party shall give written notice to the Party required to provide indemnification indemnifying party (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any matter giving rise to an obligation to indemnify and the Indemnifying Party shall defend such claim as at its expense with counsel reasonably acceptable to which indemnity the Indemnified Party, provided that the Indemnifying Party may be soughtnot settle any such claim without the consent of the Indemnified Party. The Indemnified Party will permit agrees to cooperate with the Indemnifying Party (at the expense of such Indemnifying Party) and to assume the defense of any claim or any litigation resulting therefrom, provided that: 1. The counsel for make reasonably available to the Indemnifying Party who will conduct any necessary records or documents in the defense possession of such claim or litigation must be reasonably satisfactory to the Indemnified Party; 2Party which are necessary to defend such claim. The If the Indemnifying Party does not defend or settle such claim, the Indemnified Party may participate in such defense at such Indemnified do so without the Indemnifying Party's expense; and 3participation, in which case the Indemnifying Party shall pay the expenses of such defense, and the Indemnified Party may settle or compromise such claim without the Indemnifying Party's consent. The failure by of any Indemnified Party to give notice as provided in this Agreement will herein shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement obligations hereunder except to the extent that such omission prejudices the Indemnifying Party in its defense of the claim. The Indemnifying Party and the Indemnified Party will cooperate in the defense of any claim or litigation and the records of each will be available is actually prejudiced by such failure to the other with respect to such defensegive notice.

Notice and Opportunity to Defend. In the case of any claim asserted by a third The party against a Party entitled to indemnification indemnified under this Agreement Article 9 (the "Indemnified Party"), ) shall promptly notify in writing the Indemnified Party shall give written notice to the Party required to provide indemnification indemnifying party (the "Indemnifying Party") promptly after ), with the Sellers being deemed one party acting through Laidxxx xxx purposes of this Article 9, of any matter giving rise to an obligation to indemnify and the Indemnifying Party shall defend such claim at its expense with counsel reasonably acceptable to the Indemnified Party, provided that the Indemnifying Party may not settle any such claim without the consent of the Indemnified Party. The assumption of defense by an Indemnifying Party hereunder shall be deemed an admission by such Indemnifying Party of its obligation to indemnify the Indemnified Party has actual knowledge of any claim as hereunder with respect to which indemnity may be soughtsuch claim. The Indemnified Party will permit agrees to cooperate with the Indemnifying Party (at the expense of such Indemnifying Party) and to assume the defense of any claim or any litigation resulting therefrom, provided that: 1. The counsel for make reasonably available to the Indemnifying Party who will conduct any necessary records or documents in the defense possession of such claim or litigation must be reasonably satisfactory to the Indemnified Party; 2Party which are necessary to defend such claim. The If the Indemnifying Party does not defend or settle such claim, the Indemnified Party may participate in such defense at such Indemnified do so without the Indemnifying Party's expense; and 3participation, in which case the Indemnifying Party shall pay the expenses of such defense, and the Indemnified Party may settle or compromise such claim without the Indemnifying Party's consent. The failure by of any Indemnified Party to give notice as provided in this Agreement will herein shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement obligations hereunder except to the extent that such omission prejudices the Indemnifying Party in its defense of the claim. The Indemnifying Party and the Indemnified Party will cooperate in the defense of any claim or litigation and the records of each will be available is actually prejudiced by such failure to the other with respect to such defensegive notice.

Notice and Opportunity to Defend. In the case of If there occurs an event which any claim asserted by a third party against a Party entitled to indemnification under this Agreement (the "Indemnified Party")asserts is an indemnifiable event, the Indemnified Party seeking indemnification shall give written notice to notify the Party required obligated to provide indemnification (the "Indemnifying Party") promptly after promptly. If such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought. The Indemnified Party will permit the Indemnifying Party event involves (at the expense of such Indemnifying Partyi) to assume the defense of any claim or (ii) the commencement of any litigation resulting therefromaction or proceeding by a third person, provided that: 1. The counsel for the Party seeking indemnification will give such Indemnifying Party who will conduct the defense written notice of such claim or litigation must the commencement of such action or proceeding. Such notice shall be a condition precedent to any liability of the Indemnifying Party hereunder. Such Indemnifying Party shall have a period of thirty (30) days within which to respond thereto. If such Indemnifying Party does not respond within such thirty (30) days period, such Indemnifying Party shall be obligated to compromise or defend, at its own expense and by counsel chosen by the Indemnifying Party shall provide reasonably satisfactory to the Indemnified Party; 2. The Indemnified Party may participate in seeking indemnity, such defense at such Indemnified Party's expense; and 3. The failure by any Indemnified Party to give notice as provided in this Agreement will not relieve matter and the Indemnifying Party of its shall provide the Party seeking indemnification obligation under this Agreement except with such assurances as may be reasonably required by the latter to the extent assure that such omission prejudices the Indemnifying Party will assume, and be responsible for, the entire liability issue. If such Indemnifying Party does not respond within such thirty (30) day period and rejects responsibility for such matter in whole or in part, the Party seeking indemnification shall be free to pursue, without prejudice to any of its defense of the claimrights hereunder, such remedies as may be available to such Party under applicable law. The Party seeking indemnification agrees to cooperate fully with the Indemnifying Party and the Indemnified Party will cooperate its counsel in the defense of against any claim or litigation and the records of each will be available to the other with respect to such defense.asserted

Notice and Opportunity to Defend. In the case of any claim asserted by a third The party against a Party entitled to indemnification under this Agreement indemnified hereunder (the "Indemnified Party"), ) shall notify in writing the Indemnified Party shall give written notice to the Party required to provide indemnification indemnifying party (the "Indemnifying Party") promptly within thirty (30) days after such a third party claim is presented to the Indemnified Party has actual knowledge of any claim as to which indemnity may be sought. The Indemnified Party will permit and the Indemnifying Party (at the expense of such Indemnifying Party) to assume the defense of any claim or any litigation resulting therefrom, provided that: 1. The counsel for the Indemnifying Party who will conduct the defense of shall defend such claim or litigation must at its expense and may select the attorneys for such defense, who shall be reasonably satisfactory acceptable to the Indemnified Party; 2. The If the Indemnifying Party does not defend such claim, the Indemnified Party may participate in such defense at such Indemnified do so without the Indemnifying Party's expense; and 3participation, in which case the Indemnifying Party shall pay the expenses of such defense. The failure by any Neither the Indemnified Party nor the Indemnifying Party may settle or compromise such claim without the other party's consent, which shall not be unreasonably withheld. If the Indemnified Party fails to give notice notify the Indemnifying Party of a third party claim as provided in this Agreement will not relieve Section 7.3, and if the Indemnifying Party is thereby prejudiced by such failure of its indemnification obligation under this Agreement except to the extent that such omission prejudices the Indemnifying Party notice in its defense of the claim. The , the Indemnifying Party and the Indemnified Party will cooperate in the defense Party's obligation of any claim or litigation and the records of each will indemnity hereunder shall be available to the other extinguished with respect to such defenseclaim to the extent that the Indemnifying Party has been prejudiced by the failure to give such notice. The Indemnified Party and Indemnifying Party agree to cooperate in good faith in the defense and/or settlement of any such claim.

Notice and Opportunity to Defend. In If any party (the case "Indemnitee") receives notice of any claim asserted by a third or the commencement of any action or proceeding with respect to which any other party against a Party entitled to indemnification under this Agreement (the "Indemnified Party"), the Indemnified Party shall give written notice to the Party required or parties) is obligated to provide indemnification (the "Indemnifying Party") pursuant to Section 8.1 or 8.2, the Indemnitee shall promptly after give the Indemnifying Party notice thereof; provided, however, that failure to give such Indemnified notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party has actual knowledge shall have been actually prejudiced as a result of any claim as to which indemnity may be soughtsuch failure. The Indemnified Party will permit shall have the right to retain counsel of its own choice to represent it, and the Indemnifying Party (at shall pay the expense fees, expenses and disbursements of such Indemnifying Party) counsel; and such counsel shall, to assume the defense of any claim or any litigation resulting therefromextent consistent with its professional responsibilities, provided that: 1. The counsel for cooperate with the Indemnifying Party who will conduct the defense of such claim or litigation must be reasonably satisfactory to the Indemnified Party; 2. The Indemnified Party may participate in such defense at such Indemnified Party's expense; and 3. The failure and any counsel designated by any Indemnified Party to give notice as provided in this Agreement will not relieve the Indemnifying Party of its indemnification obligation under this Agreement except to the extent that such omission prejudices the Indemnifying Party in its defense of the claimParty. The Indemnifying Party and shall be liable for any settlement of any claim against the Indemnified Party will cooperate in made with the defense Indemnifying Party's written consent, which consent shall not be unreasonably withheld. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle or compromise any claim, or permit a default or consent to the entry of any claim judgment in respect thereof, unless such settlement, compromise or litigation and consent includes, as an unconditional term thereof, the records of each will be available giving by the claimant to the other with Indemnified Party of an unconditional release from all liability in respect to of such defenseclaim.

Notice and Opportunity to Defend. In the case of any claim asserted by a third The party against a Party entitled to indemnification indemnified under this Agreement -------------------------------- Article VIII (the "Indemnified Party"), ) shall notify in writing the Indemnified Party shall give written notice to the Party required to provide indemnification indemnifying party (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any matter giving rise to an obligation to indemnify and the Indemnifying Party shall defend such claim as at its expense with counsel reasonably acceptable to the Indemnified Party, provided that the Indemnifying Party may not settle any such claim without the consent of the Indemnified Party, which indemnity may consent will not be soughtunreasonably withheld or delayed. The Indemnified Party will permit agrees to cooperate with the Indemnifying Party (at the expense of such Indemnifying Party) and to assume the defense of any claim or any litigation resulting therefrom, provided that: 1. The counsel for make reasonably available to the Indemnifying Party who will conduct any necessary records or documents in the defense possession of such claim or litigation must be reasonably satisfactory to the Indemnified Party; 2Party which are necessary to defend such claim. The If the Indemnifying Party does not defend or settle such claim, the Indemnified Party may participate in such defense at such Indemnified do so without the Indemnifying Party's expense; and 3participation, in which case the Indemnifying Party shall pay the expenses of such defense, and the Indemnified Party may settle or compromise such claim without the Indemnifying Party's consent. The failure by of any Indemnified Party to give notice as provided in this Agreement will herein shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement obligations hereunder except to the extent that such omission prejudices the Indemnifying Party in its defense of the claim. The Indemnifying Party and the Indemnified Party will cooperate in the defense of any claim or litigation and the records of each will be available is actually prejudiced by such failure to the other with respect to such defensegive notice.

Notice and Opportunity to Defend. In If any party (the case "Indemnitee") receives notice of any claim asserted by a third or the commencement of any action or proceeding with respect to which any other party against a Party entitled to indemnification under this Agreement (the "Indemnified Party"), the Indemnified Party shall give written notice to the Party required or parties ) is obligated to provide indemnification (the "Indemnifying Party") pursuant to Section 8.1 or 8.2, the Indemnitee shall promptly after give the Indemnifying Party notice thereof; provided, however, that failure to give such Indemnified notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party has actual knowledge shall have been actually prejudiced as a result of any claim as to which indemnity may be soughtsuch failure. The Indemnified Party will permit shall have the right to retain counsel of its own choice to represent it, and the Indemnifying Party (at shall pay the expense fees, expenses and disbursements of such Indemnifying Party) counsel; and such counsel shall, to assume the defense of any claim or any litigation resulting therefromextent consistent with its professional responsibilities, provided that: 1. The counsel for cooperate with the Indemnifying Party who will conduct the defense of such claim or litigation must be reasonably satisfactory to the Indemnified Party; 2. The Indemnified Party may participate in such defense at such Indemnified Party's expense; and 3. The failure and any counsel designated by any Indemnified Party to give notice as provided in this Agreement will not relieve the Indemnifying Party of its indemnification obligation under this Agreement except to the extent that such omission prejudices the Indemnifying Party in its defense of the claimParty. The Indemnifying Party and shall be liable for any settlement of any claim against the Indemnified Party will cooperate in made with the defense Indemnifying Party's written consent, which consent shall not be unreasonably withheld. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle or compromise any claim, or permit a default or consent to the entry of any claim judgment in respect thereof, unless such settlement, compromise or litigation and consent includes, as a unconditional term thereof, the records of each will be available giving by the claimant to the other with Indemnified Party of an unconditional release from all liability in respect to of such defenseclaim.

Notice and Opportunity to Defend. In If any party (the case “Indemnitee”) receives notice of any claim asserted by a third or the commencement of any action or proceeding with respect to which any other party against a Party entitled to indemnification under this Agreement (the "Indemnified Party"), the Indemnified Party shall give written notice to the Party required is obligated to provide indemnification (the "“Indemnifying Party"”) pursuant to Section 9.1 or 9.2, the Indemnitee shall promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought. The Indemnified Party will permit give the Indemnifying Party (at the expense of such Indemnifying Party) to assume the defense of any claim or any litigation resulting therefromnotice thereof, provided that: 1. The counsel for however the failure to deliver such notice shall not be a condition precedent to any liability of the Indemnifying Party who will conduct under the defense of such claim or litigation must be reasonably satisfactory to the Indemnified Party; 2. The Indemnified Party may participate provisions for indemnification contained in such defense at such Indemnified Party's expense; and 3. The failure by any Indemnified Party to give notice as provided in this Agreement will not relieve the Indemnifying Party of its indemnification obligation under this Agreement except to the extent that the failure to deliver such omission notice prejudices the Indemnifying Party in its defense of the claimParty’s ability to defend such proceeding. The Indemnifying Party may compromise and defend, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, any such matter involving the asserted liability of the Indemnitee. In any event, the Indemnitee, the Indemnifying Party and the Indemnified Party will Indemnifying Party’s counsel shall cooperate in the compromise of, or defense against, any such asserted liability. The Indemnitee, at its own expense, can choose to have its counsel participate in the defense of such asserted liability, provided, however, the Indemnifying Party’s counsel shall control such defense. If the Indemnifying Party chooses to defend any claim or litigation and claim, the records of each will be Indemnitee shall make available to the Indemnifying Party any books, records or other with respect documents within its control that are necessary or appropriate to such defense.

Notice and Opportunity to Defend. In the case of any claim asserted by a third The party against a Party entitled to indemnification indemnified under this Agreement Article 12 (the "Indemnified Party"), ) shall promptly notify in writing the Indemnified Party shall give written notice to the Party required to provide indemnification indemnifying party (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any matter giving rise to an obligation to indemnify and the Indemnifying Party shall defend such claim as at its expense with counsel reasonably acceptable to which indemnity the Indemnified Party, provided that the Indemnifying Party may not settle any such claim without the consent of the Indemnified Party. If the Owners or the Stockholders are the Indemnifying Party, then the notice required by the immediately preceding sentence shall be soughtgiven to the Owners' Representative who shall act on behalf of the Indemnifying Party for purposes of this Article 12. The Indemnified Party will permit agrees to cooperate with the Indemnifying Party (at the expense of such Indemnifying Party) and to assume the defense of any claim or any litigation resulting therefrom, provided that: 1. The counsel for make reasonably available to the Indemnifying Party who will conduct any necessary records or documents in the defense possession of such claim or litigation must be reasonably satisfactory to the Indemnified Party; 2Party which are necessary to defend such claim. The If the Indemnifying Party does not defend or settle such claim, the Indemnified Party may participate in such defense at such Indemnified do so without the Indemnifying Party's expense; and 3participation, in which case the Indemnifying Party shall pay the expenses of such defense, and the Indemnified Party may settle or compromise such claim without the Indemnifying Party's consent. The failure by of any Indemnified Party to give notice as provided in this Agreement will herein shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement obligations hereunder except to the extent that such omission prejudices the Indemnifying Party in its defense of the claim. The Indemnifying Party and the Indemnified Party will cooperate in the defense of any claim or litigation and the records of each will be available is actually prejudiced by such failure to the other with respect to such defensegive notice.

Notice and Opportunity to Defend. In the case of any claim asserted by a third party against a Party entitled to Each Person seeking indemnification under this Agreement Article 11 (the "Indemnified Party"), ) shall promptly notify the Indemnified Party shall give written notice to the Party required other party obligated to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim Claim as to which indemnity may be sought. The Indemnified Party will permit ; provided, however, that the Indemnifying Party (at the expense of such Indemnifying Party) failure to assume the defense of any claim or any litigation resulting therefrom, provided that: 1. The counsel for the Indemnifying Party who will conduct the defense of such claim or litigation must be reasonably satisfactory to the Indemnified Party; 2. The Indemnified Party may participate in such defense at such Indemnified Party's expense; and 3. The failure by any Indemnified Party to give provide prompt notice as provided in this Agreement will not shall relieve the Indemnifying Party of its indemnification obligation under this Agreement except obligations hereunder only to the extent that such omission failure prejudices the Indemnifying Party in its hereunder. The Indemnified Party shall have the right to control the defense of such Claim and the claim. The Indemnifying Party and shall indemnify the Indemnified Party will cooperate for its costs in connection therewith and shall be entitled to participate in the defense of such Claim at its own expense. In no event shall an Indemnifying Party be liable for any settlement or compromise effected without its prior consent and the Indemnifying Party, in the defense of any claim such Claim, shall not, except with the prior consent of the Indemnified Party, consent to entry of any judgment or litigation and enter into any settlement which does not include as an unconditional term a release of the records of each will be available to the other with Indemnified Party from all Liability in respect to such defenseClaim by the claimant or plaintiff or which provides for any form of injunctive relief or other non-monetary relief which affects the Indemnified Party.

Notice and Opportunity to Defend. In the case of any claim asserted by a third The party against a Party entitled to indemnification indemnified under this Agreement Article 9 (the "Indemnified Party"), ) shall promptly notify in writing the Indemnified Party shall give written notice to the Party required to provide indemnification indemnifying party (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any matter giving rise to an obligation to indemnify and the Indemnifying Party shall defend such claim as at its expense with counsel reasonably acceptable to which indemnity the Indemnified Party, provided that the Indemnifying Party may be soughtnot settle any such claim without the consent of the Indemnified Party. The Indemnified Party will permit agrees to cooperate with the Indemnifying Party (at the expense of such Indemnifying Party) and to assume the defense of any claim or any litigation resulting therefrom, provided that: 1. The counsel for make reasonably available to the Indemnifying Party who will conduct any necessary records or documents in the defense possession of such claim or litigation must be reasonably satisfactory to the Indemnified Party; 2Party which are necessary to defend such claim. The If the Indemnifying Party does not defend or settle such claim, the Indemnified Party may participate in such defense at such Indemnified do so without the Indemnifying Party's expense; and 3participation, in which case the Indemnifying Party shall pay the expenses of such defense, and the Indemnified Party may settle or compromise such claim without the Indemnifying Party's consent. The failure by of any Indemnified Party to give notice as provided in this Agreement will herein shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement obligations hereunder except to the extent that such omission prejudices the Indemnifying Party in its defense of the claim. The Indemnifying Party and the Indemnified Party will cooperate in the defense of any claim or litigation and the records of each will be available is actually prejudiced by such failure to the other with respect to such defensegive notice.

Notice and Opportunity to Defend. In If any party (the case "Indemnitee") receives notice of any claim asserted by a third or the commencement of any action or proceeding with respect to which any other party against a Party entitled to indemnification under this Agreement (the "Indemnified Party"), the Indemnified Party shall give written notice to the Party required or parties) is obligated to provide indemnification (the "Indemnifying Party") ), the Indemnitee shall promptly after give the Indemnifying party notice thereof; provided, however, that failure to give such Indemnified notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party has actual knowledge shall have been actually and materially prejudiced as a result of any claim as to which indemnity may be soughtsuch failure. The Indemnified Party will permit shall have the right to retain counsel of its own choice to represent it, and the Indemnifying Party (at shall pay the expense fees, expenses and disbursements of such Indemnifying Party) counsel; and such counsel shall, to assume the defense of any claim or any litigation resulting therefromextent consistent with its professional responsibilities, provided that: 1. The counsel for cooperate with the Indemnifying Party who will conduct the defense of such claim or litigation must be reasonably satisfactory to the Indemnified Party; 2. The Indemnified Party may participate in such defense at such Indemnified Party's expense; and 3. The failure and any counsel designated by any Indemnified Party to give notice as provided in this Agreement will not relieve the Indemnifying Party of its indemnification obligation under this Agreement except to the extent that such omission prejudices the Indemnifying Party in its defense of the claimParty. The Indemnifying Party and shall be liable for any settlement of any claim against the Indemnified Party will cooperate in made with the defense Indemnifying Party's written consent, which consent shall not be unreasonably withheld. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle or compromise any claim, or permit a default or consent to the entry of any claim judgment in respect thereof, unless such settlement, compromise or litigation and consent includes, as an unconditional term thereof, the records of each will be available giving by the claimant to the other with Indemnified Party of any unconditional release from all liability in respect to of such defenseclaim.