Common use of Notification and Defense Rights Clause in Contracts

Notification and Defense Rights. (i) If any party to this Agreement (an "Indemnitee") receives written notice of the assertion of any claim or of the commencement of any action or proceeding by any entity who is not a party to this Agreement (a "Third Party Claim") against or affecting such Indemnitee, and if such assertion were presumed to be true (regardless of the actual outcome) then the other party or parties could be obligated to provide indemnification under this Agreement (an "Indemnifying Party"), then such Indemnitee will give such Indemnifying Party reasonably prompt written notice thereof, but in any event no later than thirty (30) calendar days after receipt of such written notice of such Third Party Claim. However, if it is reasonably determined by the Indemnitee that immediate action is required to address a condition giving rise to a Third Party Claim, the Indemnitee is authorized to take immediate action without prior notice, and thereafter give notice to the Indemnifying Party as soon as practicable. In such event the Indemnitee shall be entitled to recover from the Indemnifying Party to the extent the Indemnifying Party is liable for indemnification hereunder. (ii) Failure of the Indemnitee to give the notice described in subsection (i) above shall not relieve the Indemnifying Party from any liability which it may have on account of indemnification or otherwise, except to the extent that the Indemnifying Party is prejudiced thereby. (iii) If (a) the Indemnifying Party admits in the Notice to Defend (defined below) its obligation to indemnify the Indemnitee for the Third Party Claim, and (b) (i) the Indemnifying Party gives the Indemnitee a bond from a bonding company rated A+ or better by A.M. Best and Co. or from another bonding company otherwise acceptable to the Indemnitee or gives the Indemnitee other security reasonably satisfactory to the Indemnitee for the full amount of the asserted claim or if the independent certified public accountant of the Indemnifying Party, which is regularly used by the Indemnifying Party, certifies in writing to the Indemnitee that it would be proper to reserve or accrue a lesser amount on the Indemnifying Party's financial statements in accordance with generally accepted accounting principles, then such bond or security will be for such lesser amount, (ii) or in the case of where the Shareholder is the Indemnifying Party, the amount of Escrow Shares equals or exceeds the full amount of the asserted claim and, with respect to claims that are subject to the Maximum Aggregate Liability Amount, such asserted claim is less than the remaining Maximum Aggregate Liability Amount, and only in such event, the Indemnifying Party will have the sole right to control the defense of such Third Party Claim at such Indemnifying Party's sole expense by Indemnifying Party's own counsel (which counsel must be reasonably satisfactory to the Indemnitee), by giving written notice to the Indemnitee (the "Notice to Defend") no later than twenty (20) calendar days after receipt of the above-described notice of such Third Party Claim. (iv) In all circumstances other than that described in subsection (iii) above, the Indemnifying Party may participate in (but not control) the defense if it gives the Notice to Defend within such twenty-day period, and the Indemnitee also will have the right to participate in the defense of any Third Party Claim assisted by counsel of its own choosing; provided, however, that the Indemnitee shall have the sole right to make any significant decisions with respect to the defense of such Third Party Claim except as to the settlement or compromise of such Third Party Claim which shall be subject to the provisions of Section 7.6.1. (v) During the period prior to receiving the Notice to Defend, the Indemnitee can proceed to defend the claim, action or proceeding and the Indemnitee shall be entitled to recover from the Indemnifying Party to the extent the Indemnifying Party is liable for indemnification hereunder. (vi) Notwithstanding anything in this Section 7.6. 1.1 to the contrary, the Indemnifying Party shall not be entitled to participate in, and the Indemnitee shall be entitled to sole and absolute control over the defense, compromise or settlement of, any claim to the extent that the claim seeks an injunction or other similar equitable or nonmonetary relief against the Indemnitee. (vii) If the Indemnitee does not receive a Notice to Defend with respect to a Third Party Claim within the twenty day period described in subsection (iii) above, the Indemnitee may, at its option, solely defend the Third Party Claim assisted by counsel of its own choosing, and the Indemnifying Party will be liable for all costs and expenses, and all settlement amounts (subject to and in accordance with Section 7.6.1.2), but only to the extent the Indemnifying Party is liable for indemnification hereunder. (viii) Notwithstanding the foregoing, in the event that an insurer has assumed the defense of any Third Party Claim pursuant to the terms of an insurance policy, then the parties agree, subject to the terms of such policy, to let the counsel of such insurance company conduct the defense of such Third Party Claim and both the Indemnifying Party and the Indemnitee shall have the right to participate in the defense and (subject to Section 7.6.1.1(vi)) hereof settlement of such Third Party Claim.

Notification and Defense Rights. (i) If any party person entitled to indemnification pursuant to this Agreement (an "Indemnitee") receives written notice of the assertion of any claim or of the commencement of any action or proceeding by any entity who is not a party to this Agreement (a "Third Party Claim") against or affecting such Indemnitee, and if such assertion were presumed to be true (regardless of the actual outcome) ), then the other party or parties could be obligated to provide indemnification under this Agreement (an "Indemnifying Party"), then such Indemnitee will give such Indemnifying Party reasonably prompt written notice thereof, but in any event no later than thirty (30) calendar days after receipt of such written notice of such Third Party Claim. However, if it is reasonably determined by the Indemnitee that immediate action is required to address a condition giving rise to a Third Party Claim, the Indemnitee is authorized to take immediate action without prior notice, and thereafter give notice to the Indemnifying Party as soon as practicable. In such event the Indemnitee shall be entitled to recover from the Indemnifying Party to the extent the Indemnifying Party is liable for indemnification hereunder. (ii) Failure of the Indemnitee to give the notice described in subsection (i) above shall not relieve the Indemnifying Party from any liability which it may have on account of indemnification or otherwise, except to the extent that the Indemnifying Party is prejudiced thereby. (iii) If (a) the Indemnifying Party admits in the Notice to Defend (defined below) its obligation to indemnify indemnity the Indemnitee for the Third Party Claim, and (b) (i) the Indemnifying Party gives the Indemnitee a bond from a bonding company rated A+ or better by A.M. Best and Co. or from another bonding company otherwise acceptable to the Indemnitee or gives the Indemnitee other security reasonably satisfactory to the Indemnitee for the full amount of the asserted claim or if the independent certified public accountant of the Indemnifying Party, which is regularly used by the Indemnifying Party, certifies in writing to the Indemnitee that it would be proper to reserve or accrue a lesser amount on the Indemnifying Party's financial statements in accordance with generally accepted accounting principles, then such bond or security will be for such lesser amount, (ii) or in the case of where the Shareholder is the Indemnifying Party, the amount of Escrow Shares equals or exceeds the full amount of the asserted claim and, with respect to claims that are subject to the Maximum Aggregate Liability Amount, such asserted claim is less than the remaining Maximum Aggregate Liability Amount, and only in such event, the Indemnifying Party will have may elect to defend the sole right to control the defense of such Third Party Claim at such the Indemnifying Party's sole expense by Indemnifying Party's own counsel (which counsel must be reasonably satisfactory to the Indemnitee), by giving written notice to the Indemnitee (the "Notice to Defend") no later than twenty (20) calendar days after receipt of the above-described notice of such Third Party Claim.. The Indemnitee also will have the right to participate in the defense of any Third Party Claim assisted by counsel of this own choosing; (iv) In all circumstances other than that described in subsection (iii) above, the Indemnifying Party may participate in (but not control) the defense if it gives the Notice notice to Defend of its desire to do so within such twenty-day period, and the Indemnitee also will have the right to participate in the defense of any Third Party Claim assisted by counsel of its own choosing; provided, however, that the Indemnitee shall have the sole right to make any significant decisions with respect to the defense of such Third Party Claim except as to the settlement or compromise of such Third Party Claim which shall be subject to the provisions of Section 7.6.19.6.1.2. (v) During the period prior to receiving the Notice to Defend, the Indemnitee can proceed to defend the claim, action or proceeding and the Indemnitee shall be entitled to recover from the Indemnifying Party to the extent the Indemnifying Party is liable for indemnification hereunder. (vi) Notwithstanding anything in this Section 7.69.6. 1.1 to the contrary, the Indemnifying Party shall not be entitled only to participate in, and but the Indemnitee shall be entitled to sole and absolute control over the defense, compromise or settlement of, any claim to the extent that the claim seeks an injunction or other similar equitable or nonmonetary relief against the Indemnitee. (vii) If the Indemnitee does not receive a Notice to Defend with respect to a Third Party Claim within the twenty day period described in subsection (iii) above, the Indemnitee may, at its option, solely defend the Third Party Claim assisted by counsel of its own choosing, and the Indemnifying Party will be liable for all reasonable costs and expenses, and all settlement amounts (subject to and in accordance with Section 7.6.1.2Sections 9.6.1.2), but only to the extent the Indemnifying Party is liable for indemnification hereunder. (viii) Notwithstanding the foregoing, in the event that an insurer has assumed the defense of any Third Party Claim pursuant to the terms of an insurance policy, then the parties agree, subject to the terms of such policy, to let the counsel of such insurance company conduct the defense of such Third Party Claim and both the Indemnifying Party and the Indemnitee shall have the right to participate in the defense and (subject to Section 7.6.1.1(vi9.6.1.2(vi)) hereof settlement of such Third Party Claim.

Notification and Defense Rights. (i) If any party to this Agreement (an "Indemnitee") Indemnified Party receives written notice of the assertion of any claim or of the commencement of any action or proceeding by any entity who which is not a party to this Agreement (a "Third Party Claim") against or affecting such IndemniteeIndemnified Party, and if such assertion were is presumed to be true (regardless of the actual outcome) then the other party or parties could be obligated to provide indemnification under this Agreement (an "Indemnifying Party"), then such Indemnitee will Indemnified Party shall give such Indemnifying Party reasonably prompt written notice thereof, but in any event no later than thirty twenty (3020) calendar days after receipt of such written notice of such Third Party Claim. However; provided, if it is reasonably determined by the Indemnitee however, that immediate action is required any delay or failure to address a condition giving rise to a Third Party Claim, the Indemnitee is authorized to take immediate action without prior notice, and thereafter give notice to the notify any Indemnifying Party as soon as practicable. In such event the Indemnitee shall be entitled to recover from the Indemnifying Party to the extent the Indemnifying Party is liable for indemnification hereunder. (ii) Failure of the Indemnitee to give the notice described in subsection (i) above any claim shall not relieve the Indemnifying Party it from any liability which it may have on account of indemnification or otherwise, except to the extent that the Indemnifying Party demonstrates that the defense of such action is materially prejudiced thereby. (iii) If (a) the by such delay or failure to notify. The Indemnifying Party admits in the Notice to Defend (defined below) its obligation to indemnify the Indemnitee for the Third Party Claim, and (b) (i) the Indemnifying Party gives the Indemnitee a bond from a bonding company rated A+ or better by A.M. Best and Co. or from another bonding company otherwise acceptable to the Indemnitee or gives the Indemnitee other security reasonably satisfactory to the Indemnitee for the full amount of the asserted claim or if the independent certified public accountant of the Indemnifying Party, which is regularly used by the Indemnifying Party, certifies in writing to the Indemnitee that it would be proper to reserve or accrue a lesser amount on the Indemnifying Party's financial statements in accordance with generally accepted accounting principles, then such bond or security will be for such lesser amount, (ii) or in the case of where the Shareholder is the Indemnifying Party, the amount of Escrow Shares equals or exceeds the full amount of the asserted claim and, with respect to claims that are subject to the Maximum Aggregate Liability Amount, such asserted claim is less than the remaining Maximum Aggregate Liability Amount, and only in such event, the Indemnifying Party will shall have the sole right to control the defense of such any Third Party Claim at by such Indemnifying Party's sole expense by Indemnifying Party's own counsel (which counsel must be reasonably satisfactory to the Indemnitee), by giving written notice to the Indemnitee (the "Notice to Defend") no later than twenty (20) calendar days after receipt of the above-described notice of such Third counsel. The Indemnified Party Claim. (iv) In all circumstances other than that described in subsection (iii) above, the Indemnifying Party may participate in (but not control) the defense if it gives the Notice to Defend within such twenty-day period, and the Indemnitee also will have the right to participate in the defense of any Third Party Claim assisted by counsel of its own choosing, but at the sole cost and expense of the Indemnified Party; provided, however, that if an Indemnifying Party and an Indemnified Party shall be included as defendants in any action and the Indemnitee Indemnified Party shall have been reasonably advised by its counsel that there may be legal defenses available to the Indemnified Party which are different from or in addition to those available to the Indemnifying Party, the Indemnified Party shall have the sole right to make any significant decisions with respect to employ its own counsel in such action and in such event, the defense fees and expenses of such Third Party Claim except as to the settlement or compromise of such Third Party Claim which counsel shall be subject to the provisions of Section 7.6.1. (v) During the period prior to receiving the Notice to Defend, the Indemnitee can proceed to defend the claim, action or proceeding and the Indemnitee shall be entitled to recover from borne by the Indemnifying Party to the extent the Indemnifying Party is liable for indemnification hereunder. (vi) Notwithstanding anything in this Section 7.6. 1.1 to the contrary, the Indemnifying Party shall not be entitled to participate in, and the Indemnitee shall be entitled to sole and absolute control over the defense, compromise or settlement of, any claim to the extent that the claim seeks an injunction or other similar equitable or nonmonetary relief against the Indemnitee. (vii) If the Indemnitee does not receive a Notice to Defend with respect to a Third Party Claim within the twenty day period described in subsection (iii) above, the Indemnitee may, at its option, solely defend the Third Party Claim assisted by counsel of its own choosing, and the Indemnifying Party will be liable for all costs and expenses, and all settlement amounts (subject to and in accordance with Section 7.6.1.2)Party, but only to the extent such fees and expenses relate to defenses not being asserted by the Indemnified Party. The Indemnifying Party is liable for indemnification hereunder. (viii) and the Indemnified Party will cooperate with each other in good faith in such defense. Notwithstanding the foregoing, the Shareholders may, at their option, pay to TELAC any amount remaining under the Cap (as hereinafter defined) that has not been paid, and upon such payment, the Shareholders shall be under no further obligation to defend or contest such proceedings. For purposes of determining whether the Cap has been reached, the Shareholders' Counsel Expenses incurred in the event that an insurer has assumed the such defense of any Third Party Claim pursuant to the terms of an insurance policy, then the parties agree, subject to the terms of such policy, to let the counsel of such insurance company conduct the defense of such Third Party Claim and both the Indemnifying Party and the Indemnitee shall have the right to participate in the defense and (subject to Section 7.6.1.1(vi)) hereof settlement of such Third Party Claimbe included.

Notification and Defense Rights. (ia) If any party to this Agreement (an "Indemnitee") receives written notice of the assertion of any claim or of the commencement of any action or proceeding by any entity who is not a party to this Agreement (a "Third Party Claim") against or affecting such Indemnitee, and if such assertion were presumed to be true (regardless of the actual outcome) then the other party or parties could be obligated to provide indemnification under this Agreement (an "Indemnifying Party"), then such Indemnitee will give such Indemnifying Party reasonably prompt written notice thereof, but in any event no later than thirty (30) calendar days after receipt of such written notice of such Third Party Claim. However, if it is reasonably determined by the Indemnitee that immediate action is required to address a condition giving rise to a Third Party Claim, the Indemnitee is authorized to take immediate action without prior notice, and thereafter give notice to the Indemnifying Party as soon as practicable. In such event the Indemnitee shall be entitled to recover from the Indemnifying Party to the extent the Indemnifying Party is liable for indemnification hereunder. (iib) Failure of the Indemnitee to give the notice described in subsection (ia) above shall not relieve the Indemnifying Party from any liability which it may have on account of indemnification or otherwise, except to the extent that the Indemnifying Party is prejudiced thereby. (iiic) If (ai) the Indemnifying Party admits in the Notice to Defend (defined below) its obligation to indemnify the Indemnitee for the Third Party Claim, Claim and (b) (i) the Indemnifying Party gives the Indemnitee a bond from a bonding company rated A+ or better by A.M. Best and Co. or from another bonding company otherwise acceptable to the Indemnitee or gives the Indemnitee other security reasonably satisfactory to the Indemnitee for the full amount of the asserted claim or if the independent certified public accountant of the Indemnifying Party, which is regularly used by the Indemnifying Party, certifies in writing to the Indemnitee that it would be proper to reserve or accrue a lesser amount on the Indemnifying Party's financial statements in accordance with generally accepted accounting principles, then such bond or security will be for such lesser amount, (ii) or in the case of where the Shareholder is the Indemnifying Party, the amount of Escrow Shares equals or exceeds outstanding on the full amount Promissory Note at the time of the asserted claim and, with respect to claims that are subject filing of such a Third Party Claim is at least equal to the Maximum Aggregate Liability Amountamount alleged owing in such Third Party Claim, such asserted claim is less than the remaining Maximum Aggregate Liability Amount, and only then in such event, the Indemnifying Party will have the sole right to control the defense of such Third Party Claim at such Indemnifying Party's sole expense by Indemnifying Party's own counsel (which counsel must be reasonably satisfactory to the Indemnitee), by giving written notice to the Indemnitee (the "Notice to Defend") no later than twenty (20) calendar days after receipt of the above-described notice of such Third Party Claim. (ivd) In all circumstances other than that described in subsection (iiic) above, the Indemnifying Party may participate in (but not control) the defense if it gives the Notice to Defend within such twenty-day period, and the Indemnitee also will have the right to participate in the defense of any Third Party Claim assisted by counsel of its own choosing; provided, however, that the Indemnitee shall have the sole right to make any significant decisions with respect to the defense of such Third Party Claim except as to the settlement or compromise of such Third Party Claim Claim, which shall be subject to the provisions of Section 7.6.19.4.1. (ve) During the period prior to receiving the Notice to Defend, the Indemnitee can proceed to defend the claim, action or proceeding and the Indemnitee shall be entitled to recover from the Indemnifying Party to the extent the Indemnifying Party is liable for indemnification hereunder. (vif) Notwithstanding anything in this Section 7.69.4. 1.1 to the contrary, the Indemnifying Party shall not be entitled to participate in, and the Indemnitee shall be entitled to sole and absolute control over the defense, compromise or settlement of, any claim to the extent that the claim seeks an injunction or other similar equitable or nonmonetary relief against the Indemnitee. (viig) If the Indemnitee does not receive a Notice to Defend with respect to a Third Party Claim within the twenty day period described in subsection (iiic) above, the Indemnitee may, at its option, solely defend the Third Party Claim assisted by counsel of its own choosing, and the Indemnifying Party will be liable for all costs and expenses, and all settlement amounts (subject to and in accordance with Section 7.6.1.29.4.1.2), but only to the extent the Indemnifying Party is liable for indemnification hereunder. (viii) Notwithstanding the foregoing, in the event that an insurer has assumed the defense of any Third Party Claim pursuant to the terms of an insurance policy, then the parties agree, subject to the terms of such policy, to let the counsel of such insurance company conduct the defense of such Third Party Claim and both the Indemnifying Party and the Indemnitee shall have the right to participate in the defense and (subject to Section 7.6.1.1(vi)) hereof settlement of such Third Party Claim.

Notification and Defense Rights. (ia) If any party to this Agreement (an "Indemnitee") receives written notice of the assertion of any claim or of the commencement of any action or proceeding by any entity who is not a party to this Agreement (a "Third Party Claim") against or affecting such Indemnitee, and if such assertion were presumed to be true (regardless of the actual outcome) then the other party or parties could be obligated to provide indemnification under this Agreement (an "Indemnifying Party"), then such Indemnitee will give such Indemnifying Party reasonably prompt written notice thereof, but in any event no later than thirty (30) calendar days after receipt of such written notice of such Third Party Claim. However, if it is reasonably determined by the Indemnitee that immediate action is required to address a condition giving rise to a Third Party Claim, the Indemnitee is authorized to take immediate action without prior notice, and thereafter give notice to the Indemnifying Party as soon as practicable. In such event the Indemnitee shall be entitled to recover from the Indemnifying Party to the extent the Indemnifying Party is liable for indemnification hereunder. (iib) Failure of the Indemnitee to give the notice described in subsection (ia) above shall not relieve the Indemnifying Party from any liability which it may have on account of indemnification or otherwise, except to the extent that the Indemnifying Party is prejudiced thereby. (iiic) If (a) the Indemnifying Party admits in the Notice to Defend (defined below) its obligation to indemnify the Indemnitee for the Third Party Claim, and (b) (i) the Indemnifying Party gives the Indemnitee a bond from a bonding company rated A+ or better by A.M. Best and Co. or from another bonding company otherwise acceptable to the Indemnitee or gives the Indemnitee other security reasonably satisfactory to the Indemnitee for the full amount of the asserted claim or if the independent certified public accountant of the Indemnifying Party, which is regularly used by the Indemnifying Party, certifies in writing to the Indemnitee that it would be proper to reserve or accrue a lesser amount on the Indemnifying Party's financial statements in accordance with generally accepted accounting principles, then such bond or security will be for such lesser amount, (ii) or in the case of where the Shareholder is the Indemnifying Party, the amount of Escrow Shares equals or exceeds the full amount of the asserted claim and, with respect to claims that are subject to the Maximum Aggregate Liability Amount, such asserted claim is less than the remaining Maximum Aggregate Liability Amount, and only in such event, the Indemnifying Party will have the sole right to control the defense of such Third Party Claim at such Indemnifying Party's sole expense by Indemnifying Party's own counsel (which counsel must be reasonably satisfactory to the Indemnitee), by giving written notice to the Indemnitee (the "Notice to Defend") no later than twenty (20) calendar days after receipt of the above-described notice of such Third Party Claim. (iv) In all circumstances other than that described in subsection (iii) above, the The Indemnifying Party may participate in (but not control) the defense if it gives the Notice to Defend within such twenty-day period, and the Indemnitee also will have the right to participate in the defense of any Third Party Claim assisted by counsel of its own choosing; provided, however, that the Indemnitee shall have the sole right to make any significant decisions with respect to the defense of such Third Party Claim except as to the settlement or compromise of such Third Party Claim Claim, which shall be subject to the provisions of Section 7.6.19.4.1. (vd) During the period prior to receiving the Notice to Defend, the Indemnitee can proceed to defend the claim, action or proceeding and the Indemnitee shall be entitled to recover from the Indemnifying Party to the extent the Indemnifying Party is liable for indemnification hereunder. (vie) Notwithstanding anything in this Section 7.69.4. 1.1 to the contrary, the Indemnifying Party shall not be entitled to participate in, and the Indemnitee shall be entitled to sole and absolute control over the defense, compromise or settlement of, any claim to the extent that the claim seeks an injunction or other similar equitable or nonmonetary relief against the Indemnitee. (viif) If the Indemnitee does not receive a Notice to Defend with respect to a Third Party Claim within the twenty day period described in subsection (iiic) above, the Indemnitee may, at its option, solely defend the Third Party Claim assisted by counsel of its own choosing, and the Indemnifying Party will be liable for all costs and expenses, and all settlement amounts (subject to and in accordance with Section 7.6.1.29.4.1.2), but only to the extent the Indemnifying Party is liable for indemnification hereunder. (viii) Notwithstanding the foregoing, in the event that an insurer has assumed the defense of any Third Party Claim pursuant to the terms of an insurance policy, then the parties agree, subject to the terms of such policy, to let the counsel of such insurance company conduct the defense of such Third Party Claim and both the Indemnifying Party and the Indemnitee shall have the right to participate in the defense and (subject to Section 7.6.1.1(vi)) hereof settlement of such Third Party Claim.

Notification and Defense Rights. (i1) If any party to this Agreement (an "Indemnitee") receives written notice of the assertion of any claim or of the commencement of any action or proceeding by any entity who is not a party to this Agreement (a "Third Party Claim") against or affecting such Indemnitee, and if such assertion were presumed to be true (regardless of the actual outcome) then the other party or parties could be obligated to provide indemnification under this Agreement (an "Indemnifying Party"), then such Indemnitee will give such Indemnifying Party reasonably prompt written notice thereof, but in any event no later than thirty twenty (3020) calendar days after receipt of such written notice of such Third Party Claim. However, if it is reasonably determined by the Indemnitee that immediate action is required to address a condition giving rise to a Third Party Claim, the Indemnitee is authorized to take immediate action without prior notice, and thereafter give notice to the Indemnifying Party as soon as practicable. In such event the Indemnitee shall be entitled to recover from the Indemnifying Party to the extent the Indemnifying Party is liable for indemnification hereunder. Such written notice shall specify in reasonable detail, to the extent known, the nature and any particulars of the Third Party Claim giving rise to a right of indemnification. (ii2) Failure of the Indemnitee to give the notice described in subsection (i) above shall not relieve the Indemnifying Party from any liability which it may have on account of indemnification or otherwise, except to the extent that the Indemnifying Party is prejudiced thereby. (iii3) If (a) the Indemnifying Party admits in the Notice to Defend (defined below) its obligation to indemnify the Indemnitee for the Third Party Claim, and (b) (i) in the case of where the Shareholders are the Indemnifying Party gives the Indemnitee a bond from a bonding company rated A+ or better by A.M. Best and Co. or from another bonding company otherwise acceptable to the Indemnitee or gives the Indemnitee other security reasonably satisfactory to the Indemnitee for Party, the full amount of the asserted claim or if the independent certified public accountant of the Indemnifying Party, which is regularly used by the Indemnifying Party, certifies in writing to the Indemnitee that it would be proper to reserve or accrue a lesser amount on the Indemnifying Party's financial statements in accordance with generally accepted accounting principles, then such bond or security will be for such lesser amount, (ii) or in the case of where the Shareholder is the Indemnifying Party, the amount of Escrow Shares equals or exceeds the full amount of the asserted claim and, with respect to claims that are subject to the Maximum Aggregate Liability Amount, such asserted claim is less than the remaining Maximum Aggregate Liability AmountEscrowed Shares, and only then in such event, the Indemnifying Party will have the sole right to control the defense of such Third Party Claim at such Indemnifying Party's sole expense by Indemnifying Party's own counsel (which counsel must be reasonably satisfactory to the Indemnitee), by giving written notice to the Indemnitee (the "Notice to Defend") no later than twenty (20) calendar days after receipt of the above-described notice of such Third Party Claim. (iv4) In all circumstances other than that described in subsection (iii) above, the Indemnifying Party may participate in (but not control) the defense if it gives the Notice to Defend within such twenty-day period, and the Indemnitee also will have the right to participate in the defense of any Third Party Claim assisted by counsel of its own choosing; provided, however, that the Indemnitee shall have the sole right to make any significant decisions with respect to the defense of such Third Party Claim except as to the settlement or compromise of such Third Party Claim which shall be subject to the provisions of Section 7.6.19.5.1.2. (v5) During the period prior to receiving the Notice to Defend, the Indemnitee can proceed to defend the claim, action or proceeding and the Indemnitee shall be entitled to recover from the Indemnifying Party to the extent the Indemnifying Party is liable for indemnification hereunder. (vi6) Notwithstanding anything in this Section 7.69.5. 1.1 to the contrary, the Indemnifying Party shall not be entitled to participate in, and the Indemnitee shall be entitled to sole and absolute control over the defense, compromise or settlement of, any claim to the extent that the claim seeks an injunction or other similar equitable or nonmonetary relief against the Indemnitee. (vii7) If the Indemnitee does not receive a Notice to Defend with respect to a Third Party Claim within the twenty day period described in subsection (iii) above, the Indemnitee may, at its option, solely defend the Third Party Claim assisted by counsel of its own choosing, and the Indemnifying Party will be liable for all costs and expenses, and all settlement amounts (subject to and in accordance with Section 7.6.1.29.5.1.2), but only to the extent the Indemnifying Party is liable for indemnification hereunder. (viii) Notwithstanding the foregoing, in the event that an insurer has assumed the defense of any Third Party Claim pursuant to the terms of an insurance policy, then the parties agree, subject to the terms of such policy, to let the counsel of such insurance company conduct the defense of such Third Party Claim and both the Indemnifying Party and the Indemnitee shall have the right to participate in the defense and (subject to Section 7.6.1.1(vi)) hereof settlement of such Third Party Claim.