Common use of Notice of Third Party Claims; Assumption of Defense Clause in Contracts

Notice of Third Party Claims; Assumption of Defense. Buyer (in the case of a Claim pursuant to Section 6.2) or the Agent (in the case of a Claim pursuant to Section 6.3) shall give notice (“Third Party Claim Notice”) as promptly as is reasonably practicable to the Indemnifying Person of the assertion of any Claim by any Person not a party hereto against an Indemnified Person (a “Third Party Claim”) in respect of which indemnity may be sought by an Indemnified Person under this Agreement (which notice shall specify in reasonable detail the nature and amount, to the extent practicable, of such Third Party Claim); provided, however, that the failure of Buyer or the Agent to give such notice shall not relieve the Indemnifying Person of its obligations under this Article VI to such Indemnified Person except to the extent that the Indemnifying Person shall have been materially prejudiced thereby (and, in any event, any such relief shall apply only with respect to such specific Third Party Claim). If (i) in the case of a Claim pursuant to Section 6.2(a), the Basket Amount has been exceeded or is not applicable (or the Indemnifying Person, within the 15-day period referred to below in this sentence, irrevocably and unconditionally waives the applicability of the Basket Amount to the Third Party Claim) and (ii) the Indemnifying Person confirms in writing to Buyer (in the case of a Claim pursuant to Section 6.2) or the Agent (in the case of a Claim pursuant to Section 6.3) within 15 days after receipt of the Third Party Claim Notice the Indemnifying Person’s responsibility to indemnify and hold harmless the Indemnified Person therefor and within such 15-day period demonstrates to Buyer’s (in the case of a Claim pursuant to Section 6.2) or the Agent’s (in the case of a Claim pursuant to Section 6.3) reasonable satisfaction that, as of such time, the Indemnifying Person has sufficient financial resources in order to indemnify for the full amount of any potential liability in connection with such Third Party Claim, the Indemnifying Person may elect to assume control over the compromise or defense of such Third Party Claim at such Indemnifying Person’s own expense and by such Indemnifying Person’s own counsel, which counsel will be reasonably satisfactory to Buyer (in the case of a Claim pursuant to Section 6.2) or the Agent (in the case of a Claim pursuant to Section 6.3) . If the Indemnifying Person so elects to assume control over the compromise and defense of such Third Party Claim, the Indemnifying Person shall within such 15 days (or sooner, if the nature of the asserted Third Party Claim so requires) notify Buyer (in the case of a Claim pursuant to Section 6.2) or the Agent (in the case of a Claim pursuant to Section 6.3) of such Indemnifying Person’s intent to do so, and the Indemnified Person shall cooperate, at the expense of the Indemnifying Person, in the compromise of, or defense against, such Third Party Claim; provided, however, that: (i) the Indemnified Person may, if such Indemnified Person so desires, employ counsel at such Indemnified Person’s own expense to assist in the handling (but not control the defense) of any Third Party Claim; (ii) the Indemnifying Person shall keep the Indemnified Person advised of all material events with respect to any Third Party Claim; (iii) the Indemnifying Person shall obtain the prior written approval of the Indemnified Person before ceasing to defend against any Third Party Claim or entering into any settlement, adjustment or compromise of such Third Party Claim involving injunctive or similar equitable relief or other non-monetary relief against any Indemnified Person or any of its Affiliates; and (iv) no Indemnifying Person will, without the prior written consent of each Indemnified Person (with respect to Third-Party Claims (A) not involving injunctive or similar equitable relief or other non-monetary relief being asserted against the Indemnified Person, such approval shall not be unreasonably withheld, conditioned or delayed and (B) involving injunctive or similar equitable relief or other non-monetary relief being asserted against the Indemnified Person, such approval may be withheld, conditioned or delayed for any or no reason), settle or compromise or consent to the entry of any judgment in any pending or threatened action in respect of which indemnification may be sought hereunder (whether or not any such Indemnified Person is a party to such action), unless such settlement, compromise or consent by its terms obligates the Indemnifying Person to pay the full amount of the liability in connection with such Third Party Claim, includes an unconditional release of all such Indemnified Persons from all liability arising out of such Third Party Claim, and will not involve the finding or admission of any violation of Law by the Indemnified Person. Notwithstanding anything contained herein to the contrary, the Indemnifying Person shall not be entitled to have sole control over (and if it so desires, the Indemnified Person shall have sole control over) the defense, settlement, adjustment or compromise of (but the Indemnifying Person shall nevertheless be required to pay all Losses incurred by the Indemnified Person in connection with such defense, settlement or compromise but only to the extent the Indemnifying Person is required to indemnify for such Losses in accordance with this Agreement): (i) any Third Party Claim that seeks an order, injunction or other equitable or non-monetary relief against any Indemnified Person or any of its Affiliates; (ii) any Claim that is the subject of such Third Party Claim in which both the Indemnifying Person and the Indemnified Person are named as parties and either the Indemnifying Person or the Indemnified Person determines with advice of counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the other party or that a conflict of interest between such parties may exist in respect of such Claim; (iii) any Claim that is the subject of such Third Party Claim after such time as the aggregate amount of Losses for which Sellers are required to indemnify the Buyer Indemnified Parties pursuant to Section 6.2 (including without limitation the Losses related to such Third Party Claim) are reasonably expected to exceed the Final Purchase Price; and (iv) any Claim that is the subject of such Third Party Claim relating to Taxes of Buyer or the Company or any of their respective Affiliates. If the Indemnifying Person elects not to assume (or is precluded by the terms hereof from assuming) control over the compromise or the defense of such Third Party Claim, fails to timely and properly notify the Indemnified Person of its election as herein provided, or, at any time after assuming such defense, fails to diligently defend against such Third Party Claim in good faith or fails to have sufficient financial resources to pay the full amount of such potential liability in connection with such Third Party Claim, the Indemnified Person may, at the Indemnifying Person’s expense, pay, compromise or defend against such Third Party Claim (but the Indemnifying Person shall nevertheless be required to pay all Losses incurred by the Indemnified Person in connection with such defense, settlement or compromise but only to the extent the Indemnifying Person is required to indemnify for such Losses in accordance with this Agreement).

Notice of Third Party Claims; Assumption of Defense. Buyer (in the case of a Claim pursuant to Section 6.2) or the Agent (in the case of a Claim pursuant to Section 6.3) The Indemnified Person shall give deliver written notice (“Third Party Claim Notice”) as promptly as is reasonably practicable practicable, but in any event no later than ten Business Days after receiving notice thereof, to the Indemnifying Person of the assertion of any Claim claim, or the commencement of any Proceeding, by any Person not a party hereto against an Indemnified Person (a “Third Party Claim”) in respect of which indemnity may be sought by an Indemnified Person under this Agreement (which notice shall specify in reasonable detail the nature and amount, to the extent practicable, amount of such Third Party Claimclaim together with such information as may be reasonably necessary for the Indemnifying Person to determine whether the limitations in Section 10.4 have been satisfied or do not apply); provided, however, provided that the failure of Buyer or the Agent to give timely provide such notice shall not relieve release the Indemnifying Person from any of its obligations under this Article VI to such Indemnified Person hereunder except and only to the extent that the Indemnifying Person is actually prejudiced by such delay. In the event that such claim or Proceeding is a Tax Claim, the Indemnified Person shall have been materially prejudiced thereby not make any payment of such Tax Claim for at least thirty days (or such shorter period as may be required by applicable Law) after the delivery of such notice. The Indemnifying Person may, at its own expense, (a) participate in the defense of any such claim or Proceeding and (b) upon written notice to the Indemnified Person, at any time during the course of any such claim or Proceeding, assume the defense thereof with counsel of its own choice, which counsel shall be reasonably acceptable to the Indemnified Person, and, in any eventthe event of such assumption, any such relief shall apply only with respect have the exclusive right (subject to such specific Third Party Claim). If clause (i) in the case of a Claim pursuant proviso in Section 10.7) to Section 6.2(a), the Basket Amount has been exceeded settle or is not applicable compromise such claim or Proceeding; provided that (or the Indemnifying Person, within the 15-day period referred to below in this sentence, irrevocably and unconditionally waives the applicability of the Basket Amount to the Third Party Claim) and (iiA) the Indemnifying Person confirms conducts the settlement or defense in writing to Buyer an active and diligent manner, (B) the claim is not in respect of any matter involving criminal liability, (C) the case of a Claim pursuant to Section 6.2) or matter that is the Agent (in the case of a Claim pursuant to Section 6.3) within 15 days after receipt subject of the Third Party Claim Notice claim does not seek as a cause of action the Indemnifying Person’s responsibility imposition of an equitable or injunctive remedy that is binding upon the Business Entities or any of their Affiliates, (D) the amount at issue in such claim (together with all pending and previously resolved claims) does not exceed the Cap, calculated based on the amount that could reasonably be expected to indemnify and hold harmless be paid with respect to such claims assuming that the party bringing such claim against the Indemnified Person therefor and within such 15-day period demonstrates were to Buyer’s (in the case of a Claim pursuant to Section 6.2) or the Agent’s (in the case of a Claim pursuant to Section 6.3) reasonable satisfaction that, as of such time, the Indemnifying Person has sufficient financial resources in order to indemnify for the full amount of any potential liability in connection with such Third Party Claim, the Indemnifying Person may elect to assume control over the compromise or defense of such Third Party Claim at such Indemnifying Person’s own expense and by such Indemnifying Person’s own counsel, which counsel will be reasonably satisfactory to Buyer (in the case of a Claim pursuant to Section 6.2) or the Agent (in the case of a Claim pursuant to Section 6.3) prevail. If the Indemnifying Person so elects assumes such defense, the Indemnified Person shall have the right (but not the duty) to assume control over participate in the compromise defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Person; provided that, if the Indemnifying Person assumes the defense of such Third Party a Tax Claim, the Indemnifying Person shall within such 15 days (or sooner, if have full control over the nature of the asserted Third Party Claim so requires) notify Buyer (in the case of a Claim pursuant to Section 6.2) or the Agent (in the case of a Claim pursuant to Section 6.3) defense of such Tax Claim and nothing in this Agreement or otherwise shall require the Indemnifying Person to provide the Indemnified Person with access to, or information regarding, the Indemnifying Person’s intent to do so, and the Indemnified Person shall cooperate, at the expense of U.S. Federal or state combined or unitary Tax Returns which the Indemnifying Person, in the compromise of, or defense against, such Third Party ClaimPerson reasonably deems to be confidential; provided, however, that: (i) the Indemnified Person may, if such Indemnified Person so desires, employ counsel at such Indemnified Person’s own expense to assist in the handling (but not control the defense) of any Third Party Claim; (ii) provided further that the Indemnifying Person shall keep pay all reasonable costs and expenses of counsel for the Indemnified Person advised of all material events with respect to any Third Party Claim; (iii) if both the Indemnified Person and the Indemnifying Person shall obtain the prior written approval of the Indemnified Person before ceasing to defend against any Third Party Claim or entering into any settlement, adjustment or compromise of such Third Party Claim involving injunctive or similar equitable relief or other non-monetary relief against any Indemnified Person or any of its Affiliates; and (iv) no Indemnifying Person will, without the prior written consent of each Indemnified Person (with respect to Third-Party Claims (A) not involving injunctive or similar equitable relief or other non-monetary relief being asserted against the Indemnified Person, such approval shall not be unreasonably withheld, conditioned or delayed and (B) involving injunctive or similar equitable relief or other non-monetary relief being asserted against the Indemnified Person, such approval may be withheld, conditioned or delayed for any or no reason), settle or compromise or consent are named parties to the entry of any judgment in any pending or threatened action in respect of which indemnification may be sought hereunder (whether or not any such Indemnified Person is a party Proceeding and counsel to such action), unless such settlement, compromise or consent by its terms obligates the Indemnifying Person to pay the full amount of the liability in connection with such Third Party Claim, includes an unconditional release of all such Indemnified Persons from all liability arising out of such Third Party Claim, and will not involve the finding or admission of any violation of Law by the Indemnified Person. Notwithstanding anything contained herein to the contrary, the Indemnifying Person shall not be entitled to have sole control over (and if it so desires, the Indemnified Person shall have sole control over) the defense, settlement, adjustment or compromise concluded in good faith that representation of (but the Indemnifying Person shall nevertheless be required to pay all Losses incurred both parties by the Indemnified Person in connection with such defense, settlement same counsel would be inappropriate due to actual or compromise but only to the extent the Indemnifying Person is required to indemnify for such Losses in accordance with this Agreement): (i) any Third Party Claim that seeks an order, injunction or other equitable or non-monetary relief against any Indemnified Person or any of its Affiliates; (ii) any Claim that is the subject of such Third Party Claim in which both the Indemnifying Person and the Indemnified Person are named as parties and either the Indemnifying Person potential differing interests between them or the Indemnified Person determines with advice of counsel that there may be one or more legal defenses available availability to it that are different from or additional to those available to the other party or that a conflict of interest between such parties may exist in respect of such Claim; (iii) any Claim that is the subject of such Third Party Claim after such time as the aggregate amount of Losses for which Sellers are required to indemnify the Buyer Indemnified Parties pursuant to Section 6.2 (including without limitation the Losses related to such Third Party Claim) are reasonably expected to exceed the Final Purchase Price; and (iv) any Claim that is the subject of such Third Party Claim relating to Taxes of Buyer or the Company or any of their respective Affiliates. If the Indemnifying Person elects not to assume (or is precluded by the terms hereof from assuming) control over the compromise or the defense of such Third Party Claim, fails to timely and properly notify the Indemnified Person of its election as herein provided, or, at any time after assuming such defense, fails one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to diligently defend against such Third Party Claim in good faith or fails to have sufficient financial resources to pay the full amount of such potential liability in connection with such Third Party Claim, the Indemnified Person may, at the Indemnifying Person’s expense, pay, compromise or defend against such Third Party Claim (but the Indemnifying Person shall nevertheless be required to pay all Losses incurred by the Indemnified Person in connection with such defense, settlement respect thereof. Whether or compromise but only to the extent not the Indemnifying Person is required chooses to indemnify for defend or prosecute any such Losses claim or Proceeding, all of the Parties shall reasonably cooperate in accordance with this Agreement)the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. Buyer (in the case of The Indemnified Person shall give a Claim pursuant to Section 6.2) or the Agent (in the case of a Claim pursuant to Section 6.3) shall give notice (“Third Party Claim Notice”) Notice as promptly as is reasonably practicable practicable, but in any event no later than fifteen (15) days after receiving notice thereof, to the Indemnifying Person of the assertion of any Claim claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto against an Indemnified Person (a “Third Third-Party Claim”) in respect of which indemnity may be sought by an Indemnified Person under this Agreement (which notice shall the Claim Notice shall, to the extent such information is reasonably available, specify in reasonable detail the nature and amount, amount of such claim together with such information as may be necessary for the Indemnifying Person to determine that the limitations in Section 9.4 of this Agreement have been satisfied or do not apply). Subject to the extent practicableapplicable survival periods contained in Section 9.1 of this Agreement, of such Third Party Claim); provided, however, that the failure of Buyer or the Agent to give such notice notification shall not relieve affect the Indemnifying Person of its obligations under this Article VI to such Indemnified Person indemnification provided hereunder except to the extent that the Indemnifying Person shall have been actually and materially prejudiced thereby as a result of such failure. The Indemnifying Person may, at its own expense, (and, a) participate in the defense of any event, any such relief shall apply only with respect to such specific Third Third-Party Claim). If , or (i) in the case of a Claim pursuant to Section 6.2(a), the Basket Amount has been exceeded or is not applicable (or the Indemnifying Person, within the 15-day period referred to below in this sentence, irrevocably and unconditionally waives the applicability of the Basket Amount to the Third Party Claim) and (ii) the Indemnifying Person confirms in writing to Buyer (in the case of a Claim pursuant to Section 6.2) or the Agent (in the case of a Claim pursuant to Section 6.3b) within 15 ten (10) days after of receipt of the Third Claim Notice and upon notice to the Indemnified Person, assume the defense of any such Third-Party Claim Notice the Indemnifying Person’s responsibility with counsel of its own choice (which counsel shall be reasonably acceptable to indemnify and hold harmless the Indemnified Person therefor Person) and within such 15-day period demonstrates to Buyer’s (in the case of a Claim pursuant to Section 6.2) or the Agent’s (in the case of a Claim pursuant to Section 6.3) reasonable satisfaction that, as event of such timeassumption, shall have the Indemnifying Person has sufficient financial resources in order exclusive right, subject to indemnify for the full amount clause (a) of any potential liability in connection with Section 9.8 below, to settle or compromise such Third Party Claimclaim, the Indemnifying Person may elect to assume control over the compromise suit, action or defense of such Third Party Claim at such Indemnifying Person’s own expense and by such Indemnifying Person’s own counsel, which counsel will be reasonably satisfactory to Buyer (in the case of a Claim pursuant to Section 6.2) or the Agent (in the case of a Claim pursuant to Section 6.3) proceeding. If the Indemnifying Person so elects to assume control over the compromise and defense of assumes such Third Party Claim, the Indemnifying Person shall within such 15 days (or sooner, if the nature of the asserted Third Party Claim so requires) notify Buyer (in the case of a Claim pursuant to Section 6.2) or the Agent (in the case of a Claim pursuant to Section 6.3) of such Indemnifying Person’s intent to do so, and the Indemnified Person shall cooperate, at the expense of the Indemnifying Person, in the compromise of, or defense against, such Third Party Claim; provided, however, that: (i) the Indemnified Person may, if such Indemnified Person so desires, employ counsel at such Indemnified Person’s own expense to assist in the handling (but not control the defense) of any Third Party Claim; (ii) the Indemnifying Person shall keep the Indemnified Person advised of all material events with respect to any Third Party Claim; (iii) the Indemnifying Person shall obtain the prior written approval of the Indemnified Person before ceasing to defend against any Third Party Claim or entering into any settlement, adjustment or compromise of such Third Party Claim involving injunctive or similar equitable relief or other non-monetary relief against any Indemnified Person or any of its Affiliates; and (iv) no Indemnifying Person will, without the prior written consent of each Indemnified Person (with respect to Third-Party Claims (A) not involving injunctive or similar equitable relief or other non-monetary relief being asserted against the Indemnified Person, such approval shall not be unreasonably withheld, conditioned or delayed and (B) involving injunctive or similar equitable relief or other non-monetary relief being asserted against the Indemnified Person, such approval may be withheld, conditioned or delayed for any or no reason), settle or compromise or consent to the entry of any judgment in any pending or threatened action in respect of which indemnification may be sought hereunder (whether or not any such Indemnified Person is a party to such action), unless such settlement, compromise or consent by its terms obligates the Indemnifying Person to pay the full amount of the liability in connection with such Third Party Claim, includes an unconditional release of all such Indemnified Persons from all liability arising out of such Third Party Claim, and will not involve the finding or admission of any violation of Law by the Indemnified Person. Notwithstanding anything contained herein to the contrary, the Indemnifying Person shall not be entitled to have sole control over (and if it so desires, the Indemnified Person shall have sole control over) the defense, settlement, adjustment or compromise of right (but not the duty) to participate in the defense thereof and to employ counsel, at the Indemnified Person’s own expense, separate from the counsel employed by the Indemnifying Person. Whether or not the Indemnifying Person chooses to defend or prosecute any such claim, suit, action or proceeding, all of the parties hereto shall nevertheless be required to pay all Losses incurred by the Indemnified Person cooperate in connection with such defense, settlement or compromise but only to the extent the Indemnifying Person is required to indemnify for such Losses in accordance with this Agreement): (i) any Third Party Claim that seeks an order, injunction or other equitable or non-monetary relief against any Indemnified Person or any of its Affiliates; (ii) any Claim that is the subject of such Third Party Claim in which both the Indemnifying Person and the Indemnified Person are named as parties and either the Indemnifying Person or the Indemnified Person determines with advice of counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the other party or that a conflict of interest between such parties may exist in respect of such Claim; (iii) any Claim that is the subject of such Third Party Claim after such time as the aggregate amount of Losses for which Sellers are required to indemnify the Buyer Indemnified Parties pursuant to Section 6.2 (including without limitation the Losses related to such Third Party Claim) are reasonably expected to exceed the Final Purchase Price; and (iv) any Claim that is the subject of such Third Party Claim relating to Taxes of Buyer or the Company or any of their respective Affiliates. If the Indemnifying Person elects not to assume (or is precluded by the terms hereof from assuming) control over the compromise or the defense of such Third Party Claim, fails to timely and properly notify the Indemnified Person of its election as herein provided, or, at any time after assuming such defense, fails to diligently defend against such Third Party Claim in good faith or fails to have sufficient financial resources to pay the full amount of such potential liability in connection with such Third Party Claim, the Indemnified Person may, at the Indemnifying Person’s expense, pay, compromise or defend against such Third Party Claim (but the Indemnifying Person shall nevertheless be required to pay all Losses incurred by the Indemnified Person in connection with such defense, settlement or compromise but only to the extent the Indemnifying Person is required to indemnify for such Losses in accordance with this Agreement)prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. Buyer (in the case of a Claim pursuant to Section 6.2) or the Agent (in the case of a Claim pursuant to Section 6.3) The Indemnified --------------------------------------------------- Person shall give notice (“Third Party Claim Notice”) as promptly as is reasonably practicable practicable, but in any event no later than ten (10) Business Days after receiving notice thereof, to the Indemnifying Person of the assertion of any Claim claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto against an Indemnified Person (a “Third Party Claim”) in respect of which indemnity may be sought by an Indemnified Person under this Agreement (Agreement, which notice shall specify in reasonable detail the nature and amount, amount of such claim. The Indemnifying Person shall have the right to request and receive from the Indemnified Person such other information that is reasonably available to the extent practicable, of such Third Party Claim)Indemnified Person as may be necessary for the Indemnifying Person to determine that the limitations in Section 10.4 have been satisfied or do not apply; provided, however, that the failure ------------ -------- of Buyer or the Agent Indemnified Person to give such notice shall not relieve the Indemnifying Person of its obligations under this Article VI to such Indemnified Person X except to the extent (if any) --------- that the Indemnifying Person shall have been materially prejudiced thereby thereby. The Indemnifying Person may, at its own expense, (and, a) participate in any event, the defense of any such relief claim, suit, action or proceeding and (b) upon notice to the Indemnified Person, at any time during the course of any such claim, suit, action or proceeding, assume the defense thereof with counsel of its own choice and in the event of such assumption, shall apply only have the exclusive right, subject to clause (i) of Section 10.7, to settle or compromise such claim, suit, action or ---------- ------------ proceeding; provided, that the Indemnifying Person shall not have the right to -------- assume the defense of any such claim, suit, action or proceeding if at such time, it is reasonably foreseeable that such claim, suit, action or proceeding would result in damages in excess of $7.5 million of the amount which would be indemnifiable by the Indemnifying Person under this Agreement with respect to such specific Third Party Claim). If (i) in the case of a Claim pursuant to Section 6.2(a)claim, the Basket Amount has been exceeded suit, action or is not applicable (or the Indemnifying Person, within the 15-day period referred to below in this sentence, irrevocably and unconditionally waives the applicability of the Basket Amount to the Third Party Claim) and (ii) the Indemnifying Person confirms in writing to Buyer (in the case of a Claim pursuant to Section 6.2) or the Agent (in the case of a Claim pursuant to Section 6.3) within 15 days after receipt of the Third Party Claim Notice the Indemnifying Person’s responsibility to indemnify and hold harmless the Indemnified Person therefor and within such 15-day period demonstrates to Buyer’s (in the case of a Claim pursuant to Section 6.2) or the Agent’s (in the case of a Claim pursuant to Section 6.3) reasonable satisfaction that, as of such time, the Indemnifying Person has sufficient financial resources in order to indemnify for the full amount of any potential liability in connection with such Third Party Claim, the Indemnifying Person may elect to assume control over the compromise or defense of such Third Party Claim at such Indemnifying Person’s own expense and by such Indemnifying Person’s own counsel, which counsel will be reasonably satisfactory to Buyer (in the case of a Claim pursuant to Section 6.2) or the Agent (in the case of a Claim pursuant to Section 6.3) proceeding. If the Indemnifying Person so elects to assume control over the compromise and defense of assumes such Third Party Claim, the Indemnifying Person shall within such 15 days (or sooner, if the nature of the asserted Third Party Claim so requires) notify Buyer (in the case of a Claim pursuant to Section 6.2) or the Agent (in the case of a Claim pursuant to Section 6.3) of such Indemnifying Person’s intent to do so, and the Indemnified Person shall cooperate, at the expense of the Indemnifying Person, in the compromise of, or defense against, such Third Party Claim; provided, however, that: (i) the Indemnified Person may, if such Indemnified Person so desires, employ counsel at such Indemnified Person’s own expense to assist in the handling (but not control the defense) of any Third Party Claim; (ii) the Indemnifying Person shall keep the Indemnified Person advised of all material events with respect to any Third Party Claim; (iii) the Indemnifying Person shall obtain the prior written approval of the Indemnified Person before ceasing to defend against any Third Party Claim or entering into any settlement, adjustment or compromise of such Third Party Claim involving injunctive or similar equitable relief or other non-monetary relief against any Indemnified Person or any of its Affiliates; and (iv) no Indemnifying Person will, without the prior written consent of each Indemnified Person (with respect to Third-Party Claims (A) not involving injunctive or similar equitable relief or other non-monetary relief being asserted against the Indemnified Person, such approval shall not be unreasonably withheld, conditioned or delayed and (B) involving injunctive or similar equitable relief or other non-monetary relief being asserted against the Indemnified Person, such approval may be withheld, conditioned or delayed for any or no reason), settle or compromise or consent to the entry of any judgment in any pending or threatened action in respect of which indemnification may be sought hereunder (whether or not any such Indemnified Person is a party to such action), unless such settlement, compromise or consent by its terms obligates the Indemnifying Person to pay the full amount of the liability in connection with such Third Party Claim, includes an unconditional release of all such Indemnified Persons from all liability arising out of such Third Party Claim, and will not involve the finding or admission of any violation of Law by the Indemnified Person. Notwithstanding anything contained herein to the contrary, the Indemnifying Person shall not be entitled to have sole control over (and if it so desires, the Indemnified Person shall have sole control over) the defense, settlement, adjustment or compromise of right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Person. Whether or not the Indemnifying Person chooses to defend or prosecute any such claim, suit, action or proceeding, all of the parties hereto shall nevertheless be required to pay all Losses incurred by the Indemnified Person cooperate in connection with such defense, settlement or compromise but only to the extent the Indemnifying Person is required to indemnify for such Losses in accordance with this Agreement): (i) any Third Party Claim that seeks an order, injunction or other equitable or non-monetary relief against any Indemnified Person or any of its Affiliates; (ii) any Claim that is the subject of such Third Party Claim in which both the Indemnifying Person and the Indemnified Person are named as parties and either the Indemnifying Person or the Indemnified Person determines with advice of counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the other party or that a conflict of interest between such parties may exist in respect of such Claim; (iii) any Claim that is the subject of such Third Party Claim after such time as the aggregate amount of Losses for which Sellers are required to indemnify the Buyer Indemnified Parties pursuant to Section 6.2 (including without limitation the Losses related to such Third Party Claim) are reasonably expected to exceed the Final Purchase Price; and (iv) any Claim that is the subject of such Third Party Claim relating to Taxes of Buyer or the Company or any of their respective Affiliates. If the Indemnifying Person elects not to assume (or is precluded by the terms hereof from assuming) control over the compromise or the defense of such Third Party Claim, fails to timely and properly notify the Indemnified Person of its election as herein provided, or, at any time after assuming such defense, fails to diligently defend against such Third Party Claim in good faith or fails to have sufficient financial resources to pay the full amount of such potential liability in connection with such Third Party Claim, the Indemnified Person may, at the Indemnifying Person’s expense, pay, compromise or defend against such Third Party Claim (but the Indemnifying Person shall nevertheless be required to pay all Losses incurred by the Indemnified Person in connection with such defense, settlement or compromise but only to the extent the Indemnifying Person is required to indemnify for such Losses in accordance with this Agreement)prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. Buyer (in the case of a Claim pursuant to Section 6.2) or the Agent (in the case of a Claim pursuant to Section 6.3) The Indemnified Person shall give written notice (the “Third Party Claim Initial Notice”) as promptly as is reasonably practicable practicable, but in any event no later than 10 Business Days after receiving notice thereof, to the Indemnifying Person of the written assertion of any Claim claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto against an Indemnified Person (a “Third Party Claim”) in respect of which indemnity may is to be sought by an Indemnified Person under this Agreement (which notice shall specify in reasonable detail the nature of such claim and amountthe estimated amount (if then susceptible to estimation) that the Indemnified Person at that time plans to seek hereunder from the Indemnifying Person, together with such reasonably available information (if not already available to the extent practicable, of such Third Party ClaimIndemnifying Person) as may be necessary for the Indemnifying Person to determine that the limitations in Section 8.4 have been satisfied or do not apply); provided, however, that the failure of Buyer or the Agent Indemnified Person to give such notice of any such claim or commencement shall not relieve release, waive or otherwise affect the Indemnifying Person of its obligations under this Article VI to such Indemnified 8 of the Indemnifying Person with respect thereto except to the extent that it is materially prejudiced by the failure or delay in giving such notice. The Indemnifying Person may, at its own expense, (a) participate in the defense of any such claim, suit, action or proceeding and (b) upon notice to the Indemnified Person within 10 Business Days after the receipt of the Initial Notice from the Indemnified Person of the claim, suit, action or proceeding, assume the defense thereof with counsel of its own choice reasonably acceptable to the Indemnified Person, and in the event of such assumption, shall have the exclusive right, subject to compliance by the Indemnifying Person shall have been materially prejudiced thereby (and, in any event, any such relief shall apply only with respect to such specific Third Party Claim). If clauses (i) in the case of a Claim pursuant to Section 6.2(a), the Basket Amount has been exceeded or is not applicable (or the Indemnifying Person, within the 15-day period referred to below in this sentence, irrevocably and unconditionally waives the applicability of the Basket Amount to the Third Party Claim) and (iiiii) the Indemnifying Person confirms in writing of Section 8.7, to Buyer (in the case of a Claim pursuant to Section 6.2) settle or the Agent (in the case of a Claim pursuant to Section 6.3) within 15 days after receipt of the Third Party Claim Notice the Indemnifying Person’s responsibility to indemnify and hold harmless the Indemnified Person therefor and within compromise such 15-day period demonstrates to Buyer’s (in the case of a Claim pursuant to Section 6.2) claim, suit, action or the Agent’s (in the case of a Claim pursuant to Section 6.3) reasonable satisfaction that, as of such time, the Indemnifying Person has sufficient financial resources in order to indemnify for the full amount of any potential liability in connection with such Third Party Claim, the Indemnifying Person may elect to assume control over the compromise or defense of such Third Party Claim at such Indemnifying Person’s own expense and by such Indemnifying Person’s own counsel, which counsel will be reasonably satisfactory to Buyer (in the case of a Claim pursuant to Section 6.2) or the Agent (in the case of a Claim pursuant to Section 6.3) proceeding. If the Indemnifying Person does not so elects elect to assume control over such defense in accordance with the compromise and defense terms of such Third Party Claim, the Indemnifying Person shall within such 15 days (or sooner, if the nature of the asserted Third Party Claim so requires) notify Buyer (in the case of a Claim pursuant to this Section 6.2) or the Agent (in the case of a Claim pursuant to Section 6.3) of such Indemnifying Person’s intent to do so, and the Indemnified Person shall cooperate, at the expense of the Indemnifying Person, in the compromise of, or defense against, such Third Party Claim; provided, however, that: (i) the Indemnified Person may, if such Indemnified Person so desires, employ counsel at such Indemnified Person’s own expense to assist in the handling (but not control the defense) of any Third Party Claim; (ii) the Indemnifying Person shall keep the Indemnified Person advised of all material events with respect to any Third Party Claim; (iii) the Indemnifying Person shall obtain the prior written approval of the Indemnified Person before ceasing to defend against any Third Party Claim or entering into any settlement, adjustment or compromise of such Third Party Claim involving injunctive or similar equitable relief or other non-monetary relief against any Indemnified Person or any of its Affiliates; and (iv) no Indemnifying Person will, without the prior written consent of each Indemnified Person (with respect to Third-Party Claims (A) not involving injunctive or similar equitable relief or other non-monetary relief being asserted against the Indemnified Person, such approval shall not be unreasonably withheld, conditioned or delayed and (B) involving injunctive or similar equitable relief or other non-monetary relief being asserted against the Indemnified Person, such approval may be withheld, conditioned or delayed for any or no reason), settle or compromise or consent to the entry of any judgment in any pending or threatened action in respect of which indemnification may be sought hereunder (whether or not any such Indemnified Person is a party to such action), unless such settlement, compromise or consent by its terms obligates the Indemnifying Person to pay the full amount of the liability in connection with such Third Party Claim, includes an unconditional release of all such Indemnified Persons from all liability arising out of such Third Party Claim, and will not involve the finding or admission of any violation of Law by the Indemnified Person. Notwithstanding anything contained herein to the contrary, the Indemnifying Person shall not be entitled to have sole control over (and if it so desires8.6, the Indemnified Person shall have sole control over) the defensemay defend such claim, settlementsuit, adjustment action or compromise of (but the Indemnifying Person shall nevertheless be required to pay all Losses incurred by the Indemnified Person in connection with such defense, settlement or compromise but only to the extent the Indemnifying Person is required to indemnify for such Losses in accordance with this Agreement): (i) any Third Party Claim that seeks an order, injunction or other equitable or non-monetary relief against any Indemnified Person or any of its Affiliates; (ii) any Claim that is the subject of such Third Party Claim in which both the Indemnifying Person and the Indemnified Person are named as parties and either the Indemnifying Person or the Indemnified Person determines with advice of counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the other party or that a conflict of interest between such parties may exist in respect of such Claim; (iii) any Claim that is the subject of such Third Party Claim after such time as the aggregate amount of Losses for which Sellers are required to indemnify the Buyer Indemnified Parties pursuant to Section 6.2 (including without limitation the Losses related to such Third Party Claim) are reasonably expected to exceed the Final Purchase Price; and (iv) any Claim that is the subject of such Third Party Claim relating to Taxes of Buyer or the Company or any of their respective Affiliates. If the Indemnifying Person elects not to assume (or is precluded by the terms hereof from assuming) control over the compromise or the defense of such Third Party Claim, fails to timely and properly notify the Indemnified Person of its election as herein provided, or, at any time after assuming such defense, fails to diligently defend against such Third Party Claim in good faith or fails to have sufficient financial resources to pay the full amount of such potential liability in connection with such Third Party Claim, the Indemnified Person may, at the Indemnifying Person’s expense, pay, compromise or defend against such Third Party Claim (but the Indemnifying Person shall nevertheless be required to pay all Losses incurred by the Indemnified Person in connection with such defense, settlement or compromise but only to the extent the Indemnifying Person is required to indemnify for such Losses in accordance with this Agreement).37

Notice of Third Party Claims; Assumption of Defense. Buyer (in the case of a Claim pursuant to Section 6.2) or the Agent (in the case of a Claim pursuant to Section 6.3) shall give notice (“Third Party Claim Notice”) as promptly as is reasonably practicable to the Indemnifying Person of the assertion of any Claim by any Person not a party hereto against an Indemnified Person (a “Third Party Claim”) in respect of which indemnity may be sought by an Indemnified Person under this Agreement (which notice shall specify in reasonable detail the nature and amount, to the extent practicable, of such Third Party Claim); provided, however, that the failure of Buyer or the Agent to give such notice shall not relieve the Indemnifying Person of its obligations under this Article VI to such Indemnified Person except to the extent that the Indemnifying Person shall have been materially prejudiced thereby (and, in any event, any such relief shall apply only with respect to such specific Third Party Claim). If (i) in the case of a Claim pursuant to Section 6.2(a), the Basket Amount has been exceeded or is not applicable (or the Indemnifying Person, within the 15-day period referred to below in this sentence, irrevocably and unconditionally waives the applicability of the Basket Amount to the Third Party Claim) and (ii) the Indemnifying Person confirms in writing to Buyer (in the case of a Claim pursuant to Section 6.2) or the Agent (in the case of a Claim pursuant to Section 6.3) within 15 days after receipt of the Third Party Claim Notice the Indemnifying Person’s responsibility to indemnify and hold harmless the Indemnified Person therefor for the full amount of any potential liability in connection with such Third Party Claim and within such 15-day period demonstrates to Buyer’s (in the case of a Claim pursuant to Section 6.2) or the Agent’s (in the case of a Claim pursuant to Section 6.3) reasonable satisfaction that, as of such time, the Indemnifying Person has sufficient financial resources in order to indemnify for the full amount of any potential liability in connection with such Third Party Claim, the Indemnifying Person may elect to assume control over the compromise or defense of such Third Party Claim at such Indemnifying Person’s own expense and by such Indemnifying Person’s own counsel, which counsel will be reasonably satisfactory to Buyer (in the case of a Claim pursuant to Section 6.2) or the Agent (in the case of a Claim pursuant to Section 6.3) . If the Indemnifying Person so elects to assume control over the compromise and defense of such Third Party Claim, the Indemnifying Person shall within such 15 days (or sooner, if the nature of the asserted Third Party Claim so requires) notify Buyer (in the case of a Claim pursuant to Section 6.2) or the Agent (in the case of a Claim pursuant to Section 6.3) of such Indemnifying Person’s intent to do so, and the Indemnified Person shall cooperate, at the expense of the Indemnifying Person, in the compromise of, or defense against, such Third Party Claim; provided, however, that: (i) the Indemnified Person may, if such Indemnified Person so desires, employ counsel at such Indemnified Person’s own expense to assist in the handling (but not control the defense) of any Third Party Claim; (ii) the Indemnifying Person shall keep the Indemnified Person advised of all material events with respect to any Third Party Claim; (iii) the Indemnifying Person shall obtain the prior written approval of the Indemnified Person before ceasing to defend against any Third Party Claim or entering into any settlement, adjustment or compromise of such Third Party Claim involving injunctive or similar equitable relief or other non-monetary relief against any Indemnified Person or any of its Affiliates; and (iv) no Indemnifying Person will, without the prior written consent of each Indemnified Person (with respect to Third-Party Claims (A) not involving injunctive or similar equitable relief or other non-monetary relief being asserted against the Indemnified Person, such approval shall not be unreasonably withheld, conditioned or delayed and (B) involving injunctive or similar equitable relief or other non-monetary relief being asserted against the Indemnified Person, such approval may be withheld, conditioned or delayed for any or no reason), settle or compromise or consent to the entry of any judgment in any pending or threatened action in respect of which indemnification may be sought hereunder (whether or not any such Indemnified Person is a party to such action), unless such settlement, compromise or consent by its terms obligates the Indemnifying Person to pay the full amount of the liability in connection with such Third Party Claim, includes an unconditional release of all such Indemnified Persons from all liability arising out of such Third Party Claim, and will not involve the finding or admission of any violation of Law by the Indemnified Person. Notwithstanding anything contained herein to the contrary, the Indemnifying Person shall not be entitled to have sole control over (and if it so desires, the Indemnified Person shall have sole control over) the defense, settlement, adjustment or compromise of (but the Indemnifying Person shall nevertheless be required to pay all Losses incurred by the Indemnified Person in connection with such defense, settlement or compromise but only to the extent the Indemnifying Person is required to indemnify for such Losses in accordance with this Agreement): (i) any Third Party Claim that seeks an order, injunction or other equitable or non-monetary relief against any Indemnified Person or any of its Affiliates; (ii) any Claim that is the subject of such Third Party Claim in which both the Indemnifying Person and the Indemnified Person are named as parties and either the Indemnifying Person or the Indemnified Person determines with advice of counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the other party or that a conflict of interest between such parties may exist in respect of such Claim; (iii) any Claim that is the subject of such Third Party Claim after such time as the aggregate amount of Losses for which Sellers are required to indemnify the Buyer Indemnified Parties pursuant to Section 6.2 (including without limitation the Losses related to such Third Party Claim) are reasonably expected to exceed the Representation Cap Amount or the Final Purchase Price, as applicable; and (iv) any Claim that is the subject of such Third Party Claim relating to Taxes of Buyer or the any Company or any of their respective Affiliates. If the Indemnifying Person elects not to assume (or is precluded by the terms hereof from assuming) control over the compromise or the defense of such Third Party Claim, fails to timely and properly notify the Indemnified Person of its election as herein provided, or, at any time after assuming such defense, fails to diligently defend against such Third Party Claim in good faith or fails to have sufficient financial resources to pay the full amount of such potential liability in connection with such Third Party Claim, the Indemnified Person may, at the Indemnifying Person’s expense, pay, compromise or defend against such Third Party Claim (but the Indemnifying Person shall nevertheless be required to pay all Losses incurred by the Indemnified Person in connection with such defense, settlement or compromise but only to the extent the Indemnifying Person is required to indemnify for such Losses in accordance with this Agreement).

Notice of Third Party Claims; Assumption of Defense. Buyer The Indemnified Person shall give a Claim Notice (in the case of a Claim pursuant to form contemplated by Section 6.2) or the Agent (in the case of a Claim pursuant to Section 6.3) shall give notice (“Third Party Claim Notice”8.5) as promptly as is reasonably practicable practicable, but in any event no later than 30 days after receiving notice thereof, to the Indemnifying Person of the assertion of any Claim claims, or the commencement of any Proceeding, by any Person who is not a party hereto against an Indemnified Person (a “Third Party Claim”) in respect of which indemnity may be sought by an Indemnified Person under this Agreement (which notice shall specify in reasonable detail the nature and amount, to the extent practicable, of such a “Third Party Claim”); provided, however, that the failure of Buyer or the Agent Indemnified Person to give such notice shall not relieve the Indemnifying Person of its obligations under this Article VI to such Indemnified Person VIII except to the extent (if any) that the Indemnifying Person shall have been materially prejudiced thereby thereby. The Indemnifying Person may, at its own expense, (and, a) participate in any event, the defense of any such relief shall apply only with respect to such specific Third Party Claim). If Claim and (ib) in upon written notice to the case Indemnified Person, within twenty (20) days of receipt of a Claim Notice for such Third Party Claim that contains all of the detail required pursuant to Section 6.2(a)8.5, assume the Basket Amount has been exceeded or defense thereof with counsel of its own choice that is not applicable (or reasonably satisfactory to the Indemnifying Indemnified Person, within the 15-day period referred to below in this sentence, irrevocably and unconditionally waives the applicability of the Basket Amount to the Third Party Claim) and but only if (iii) the Indemnifying Person confirms notifies the Indemnified Person in writing to Buyer within twenty (in the case of a Claim pursuant to Section 6.220) or the Agent (in the case of a Claim pursuant to Section 6.3) within 15 days after receipt of the such Claim Notice for such Third Party Claim Notice that the Indemnifying Person’s responsibility to Person will indemnify and hold harmless the Indemnified Person therefor from and within such 15-day period demonstrates to Buyer’s (in against any Losses the case of a Claim pursuant to Section 6.2) Indemnified Person may suffer resulting from, arising out of, relating to, or the Agent’s (in the case of a Claim pursuant to Section 6.3) reasonable satisfaction that, as of such time, the Indemnifying Person has sufficient financial resources in order to indemnify for the full amount of any potential liability in connection with caused by such Third Party Claim, the Indemnifying Person may elect to assume control over the compromise or defense without any reservation of such Third Party Claim at such Indemnifying Person’s own expense and by such Indemnifying Person’s own counselrights, which counsel will be reasonably satisfactory to Buyer (in the case of a Claim pursuant to Section 6.2) or the Agent (in the case of a Claim pursuant to Section 6.3) . If the Indemnifying Person so elects to assume control over the compromise and defense of such Third Party Claim, the Indemnifying Person shall within such 15 days (or sooner, if the nature of the asserted Third Party Claim so requires) notify Buyer (in the case of a Claim pursuant to Section 6.2) or the Agent (in the case of a Claim pursuant to Section 6.3) of such Indemnifying Person’s intent to do so, and the Indemnified Person shall cooperate, at the expense of the Indemnifying Person, in the compromise of, or defense against, such Third Party Claim; provided, however, that: (i) the Indemnified Person may, if such Indemnified Person so desires, employ counsel at such Indemnified Person’s own expense to assist in the handling (but not control the defense) of any Third Party Claim; (ii) the Third Party Claim (x) involves only money damages that would not reasonably be expected to exceed the maximum liability of the Indemnifying Person shall keep hereunder and does not seek an injunction or other equitable relief and (y) does not involve criminal or quasi-criminal allegations against the Indemnified Person advised of all material events with respect to any Third Party Claim; or an environmental, health or safety matter, and (iii) the Indemnifying Person shall obtain conducts the prior written approval defense of the Indemnified Person before ceasing to defend against any Third Party Claim or entering into any settlementactively and diligently and in good faith. In the event of such assumption, adjustment the Indemnifying Person shall be permitted to settle or compromise of such Third Party Claim involving injunctive or similar equitable relief or other non-monetary relief against any Indemnified Person or any of its Affiliates; and (iv) no Indemnifying Person will, without the prior written consent of each the Indemnified Person (with respect to Third-Party Claims Person; provided, however, that the Indemnified Person’s consent shall be required if such settlement or judgment (A) not involving imposed any injunctive or similar equitable relief or other non-monetary relief being asserted restriction against the any Indemnified Person, such approval shall not be unreasonably withheld, conditioned or delayed and (B) involving injunctive or similar equitable relief or other non-monetary relief being asserted against does not include as a term thereof the giving by the Person(s) asserting such claim to the Indemnified Person, such approval may be withheld, conditioned or delayed for any or no reason), settle or compromise or consent to the entry of any judgment in any pending or threatened action in Persons an unconditional release from all liability with respect of which indemnification may be sought hereunder (whether or not any such Indemnified Person is a party to such action)claim, unless such settlementwith prejudice, compromise or consent (C) does not by its it terms obligates obligate the Indemnifying Person to pay the full amount of the liability Losses arising out of, related to or in connection with such Third Party Claim, includes an unconditional release of all such claim or (D) requires any Indemnified Persons from all liability arising out of such Third Party Claim, and will not involve the finding Person to admit any fault or admission of any violation of Law by the Indemnified Personwrongdoing. Notwithstanding anything contained herein to the contrary, If the Indemnifying Person shall not be entitled to have sole control over (and if it so desiresassumes such defense, the Indemnified Person shall have sole control over) the defense, settlement, adjustment or compromise of right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Person. Whether or not the Indemnifying Person shall nevertheless be required chooses to pay all Losses incurred by the Indemnified Person in connection with such defense, settlement defend or compromise but only to the extent the Indemnifying Person is required to indemnify for such Losses in accordance with this Agreement): (i) prosecute any Third Party Claim that seeks an order, injunction or other equitable or non-monetary relief against any Indemnified Person or any of its Affiliates; (ii) any Claim that is the subject of such Third Party Claim in which both the Indemnifying Person and the Indemnified Person are named as parties and either the Indemnifying Person or the Indemnified Person determines with advice of counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the other party or that a conflict of interest between such parties may exist in respect of such Claim; (iii) any Claim that is the subject of such Third Party Claim after such time as the aggregate amount of Losses for which Sellers are required to indemnify the Buyer Indemnified Parties pursuant to Section 6.2 (including without limitation the Losses related to such Third Party Claim) are reasonably expected to exceed the Final Purchase Price; and (iv) any Claim that is the subject of such Third Party Claim relating to Taxes of Buyer or the Company or any of their respective Affiliates. If the Indemnifying Person elects not to assume (or is precluded by the terms hereof from assuming) control over the compromise or the defense of such Third Party Claim, fails to timely all of the Parties shall cooperate in the defense or prosecution thereof, including making available all witnesses, pertinent records, materials and properly notify information in the Indemnified Person Person’s possession or under the Indemnified Person’s control relating thereto (or in the possession or control of any of its election Representatives) as herein provided, or, at any time after assuming such defense, fails to diligently defend against such Third Party Claim in good faith or fails to have sufficient financial resources to pay the full amount of such potential liability in connection with such Third Party Claim, the Indemnified Person may, at the Indemnifying Person’s expense, pay, compromise or defend against such Third Party Claim (but is reasonably requested by the Indemnifying Person shall nevertheless be required to pay all Losses incurred by the Indemnified Person in connection with such defense, settlement or compromise but only to the extent the Indemnifying Person is required to indemnify for such Losses in accordance with this Agreement)its counsel.

Notice of Third Party Claims; Assumption of Defense. Buyer The Indemnified Person shall give a Claim Notice (in the case of a Claim pursuant to form contemplated by Section 6.2) or the Agent (in the case of a Claim pursuant to Section 6.3) shall give notice (“Third Party Claim Notice”12.5) as promptly as is reasonably practicable practicable, but in any event no later than 10 Business Days after receiving notice thereof, to the Indemnifying Person of the assertion of any Claim claim, or the commencement of any Proceeding, by any Person not a party hereto against an Indemnified Person (a “Third Party Claim”) in respect of which indemnity may be sought by an Indemnified Person under this Agreement (which notice shall specify in reasonable detail the nature and amount, to the extent practicable, of such a “Third Party Claim”); provided, however, that the failure of Buyer or the Agent Indemnified Person to give such notice shall not relieve the Indemnifying Person of its obligations under this Article VI to such Indemnified Person 12 except to the extent (if any) that the Indemnifying Person shall have been materially actually prejudiced thereby thereby. The Indemnifying Person may, at its own expense, (and, a) participate in any event, the defense of any such relief shall apply only with respect to such specific Third Party Claim). If (i) in the case of a Claim pursuant to Section 6.2(a), the Basket Amount has been exceeded or is not applicable (or the Indemnifying Person, within the 15-day period referred to below in this sentence, irrevocably and unconditionally waives the applicability of the Basket Amount to the Third Party Claim) and (ii) the Indemnifying Person confirms in writing to Buyer (in the case of a Claim pursuant to Section 6.2) or the Agent (in the case of a Claim pursuant to Section 6.3) within 15 days after receipt of the Third Party Claim Notice the Indemnifying Person’s responsibility and (b) upon notice to indemnify and hold harmless the Indemnified Person therefor and within such 15-day period demonstrates to Buyer’s (in Person, at any time during the case of a Claim pursuant to Section 6.2) or the Agent’s (in the case of a Claim pursuant to Section 6.3) reasonable satisfaction that, as of such time, the Indemnifying Person has sufficient financial resources in order to indemnify for the full amount course of any potential liability in connection with such Third Party Claim, assume the Indemnifying Person may elect defense thereof with counsel of its own choice and in the event of such assumption, shall have the exclusive right, subject to assume control over clause (a) in the proviso in Section 12.7, to settle or compromise or defense of such Third Party Claim at such Indemnifying Person’s own expense and by such Indemnifying Person’s own counsel, which counsel will be reasonably satisfactory to Buyer (in the case of a Claim pursuant to Section 6.2) or the Agent (in the case of a Claim pursuant to Section 6.3) Claim. If the Indemnifying Person so elects to assume control over the compromise and defense of assumes such Third Party Claimdefense, the Indemnifying Person shall within such 15 days (or sooner, if the nature of the asserted Third Party Claim so requires) notify Buyer (in the case of a Claim pursuant to Section 6.2) or the Agent (in the case of a Claim pursuant to Section 6.3) of such Indemnifying Person’s intent to do so, and the Indemnified Person shall cooperatehave the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the expense of counsel employed by the Indemnifying Person, in Person (subject to the compromise of, or defense against, such Third foregoing provisions of this Section 12.6). If the Indemnifying Party Claim; provided, however, that: (i) shall fail to notify the Indemnified Person may, if such Indemnified Person so desires, employ counsel at such Indemnified Person’s own expense Party of its intent to assist in the handling (but not control the defense) of any Third Party Claim; (ii) the Indemnifying Person shall keep the Indemnified Person advised of all material events with respect to any Third Party Claim; (iii) the Indemnifying Person shall obtain the prior written approval of the Indemnified Person before ceasing exercise its rights to defend against any Third Party Claim within 30 days after receipt of any Claim Notice with respect thereto or entering into (ii) after commencing or undertaking any such defense or settlement, adjustment fails to diligently pursue or compromise of withdraws from such defense or settlement, the Indemnified Party shall have the right to undertake the defense or settlement thereof, at the Indemnifying Party’s expense. The Indemnified Party shall not, however, settle any Third Party Claim involving injunctive or similar equitable relief or other non-monetary relief against any Indemnified Person or any of its Affiliates; and (iv) no Indemnifying Person will, without the prior written consent of each Indemnified Person the Indemnifying Party (such consent not to be unreasonably withheld), absent which all rights against the Indemnifying Party for indemnification with respect to Third-such Third Party Claims (A) not involving injunctive or similar equitable relief or other non-monetary relief being asserted against the Indemnified Person, such approval Claim shall not terminate and be unreasonably withheld, conditioned or delayed and (B) involving injunctive or similar equitable relief or other non-monetary relief being asserted against the Indemnified Person, such approval may be withheld, conditioned or delayed for any or no reason), settle or compromise or consent to the entry of any judgment in any pending or threatened action in respect of which indemnification may be sought hereunder (whether deemed waived. Whether or not any such Indemnified Person is a party to such action), unless such settlement, compromise or consent by its terms obligates the Indemnifying Person chooses to pay the full amount of the liability in connection with defend or prosecute any such Third Party Claim, includes an unconditional release all of all such Indemnified Persons from all liability arising out of such Third Party Claim, and will not involve the finding or admission of any violation of Law by the Indemnified Person. Notwithstanding anything contained herein to the contrary, the Indemnifying Person parties hereto shall not be entitled to have sole control over (and if it so desires, the Indemnified Person shall have sole control over) the defense, settlement, adjustment or compromise of (but the Indemnifying Person shall nevertheless be required to pay all Losses incurred by the Indemnified Person cooperate in connection with such defense, settlement or compromise but only to the extent the Indemnifying Person is required to indemnify for such Losses in accordance with this Agreement): (i) any Third Party Claim that seeks an order, injunction or other equitable or non-monetary relief against any Indemnified Person or any of its Affiliates; (ii) any Claim that is the subject of such Third Party Claim in which both the Indemnifying Person and the Indemnified Person are named as parties and either the Indemnifying Person or the Indemnified Person determines with advice of counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the other party or that a conflict of interest between such parties may exist in respect of such Claim; (iii) any Claim that is the subject of such Third Party Claim after such time as the aggregate amount of Losses for which Sellers are required to indemnify the Buyer Indemnified Parties pursuant to Section 6.2 (including without limitation the Losses related to such Third Party Claim) are reasonably expected to exceed the Final Purchase Price; and (iv) any Claim that is the subject of such Third Party Claim relating to Taxes of Buyer or the Company or any of their respective Affiliates. If the Indemnifying Person elects not to assume (or is precluded by the terms hereof from assuming) control over the compromise or the defense of such Third Party Claim, fails to timely and properly notify the Indemnified Person of its election as herein provided, or, at any time after assuming such defense, fails to diligently defend against such Third Party Claim in good faith or fails to have sufficient financial resources to pay the full amount of such potential liability in connection with such Third Party Claim, the Indemnified Person may, at the Indemnifying Person’s expense, pay, compromise or defend against such Third Party Claim (but the Indemnifying Person shall nevertheless be required to pay all Losses incurred by the Indemnified Person in connection with such defense, settlement or compromise but only to the extent the Indemnifying Person is required to indemnify for such Losses in accordance with this Agreement)prosecution thereof.