Common use of Procedure for Indemnification with Respect to Third Clause in Contracts

Procedure for Indemnification with Respect to Third. PARTY CLAIMS. (a) If either party (the "Indemnified Party") determines to seek indemnification under this Article with respect to Indemnifiable Claims resulting from the assertion of liability by third parties, it shall give notice to the other party (the "Indemnifying Party") within 30 days of the Indemnified Party's becoming aware of any such Indemnifiable Claim or of facts upon which any such Indemnifiable Claim will be based; the notice shall set forth such information with respect thereto as is then reasonably available to the Indemnified Party's. If any such liability is asserted against the Indemnified Party, and the Indemnified Party notifies the Indemnifying Party thereof, the Indemnifying Party will be entitled, if it so elects by written notice delivered to the Indemnified Party within 20 days after receiving the Indemnified Party's notice, to assume the defense thereof with counsel satisfactory to the Indemnified Party as long as such defense is instituted and continuously maintained in good faith by the Indemnifying Party. Notwithstanding the foregoing, (i) the Indemnified Party shall also have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party; (ii) the Indemnified Party shall not have any obligation to give any notice of any assertion of liability by a third party unless such assertion is in writing; (iii) the rights of the Indemnified Party to be indemnified hereunder in respect of Indemnifiable Claims resulting from the assertion of liability by third parties shall not be adversely affected by its failure to give notice pursuant to the foregoing unless, and, if so, only to the extent that, the Indemnifying Party is materially prejudiced thereby; and (iv) the Indemnifying Party will consult with the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim; provided however, that the consent of any Indemnifying Party will not be a pre-requisite to any settlement by the Indemnified Party, but in no event shall the Indemnifying Party agree to (x) any performance obligation applicable to the Indemnified Party as part of a settlement without prior approval as to such performance obligation from the affected Indemnified Party; or (y) in the case where Seller is the Indemnifying Party any settlement, which when combined with all other Indemnifiable Claims, is in excess of the Purchase Price. As used in this paragraph, "performance obligation" means actions or obligations other than the payment of money. The Indemnifying Party will not be required to indemnify the Indemnified Party for any amount paid or payable in the settlement of any claim for which the Indemnifying Party has delivered a timely notice of election if such amount was agreed to without the consent of the Indemnifying Party. With respect to any assertion of liability by a third party that results in an Indemnifiable Claim, the parties hereto shall make available to each other all relevant information in their possession material to any such assertion. (b) In the event that the Indemnifying Party, within 20 days after receipt of the aforesaid notice of an Indemnifiable Claim, fails to assume the defense of the Indemnified Party against such Indemnifiable Claim, the Indemnified Party shall have the right to undertake the defense, compromise or settlement of such action on behalf of and for the account and risk of the Indemnifying Party.

Procedure for Indemnification with Respect to Third. PARTY CLAIMS.Party ------------------------------------------- Claims ------ (a) If either party (the "an Indemnified Party") Person determines to seek indemnification under this Article XIII with respect to Indemnifiable Claims the existence of a claim giving rise to Damages ("Claim") resulting from the assertion of liability by third parties, it parties or an Indemnified Person shall give notice to the other party (the "Indemnifying Party") within 30 days of the Person promptly after such Indemnified Party's becoming Person becomes aware of any such Indemnifiable Claim claim or of facts upon which any such Indemnifiable Claim claim will be based; the notice shall set forth such material information with respect thereto as is then reasonably available to the such Indemnified Party'sPerson. If In case any such liability is asserted against the such Indemnified PartyPerson, and the such Indemnified Party Person notifies the such Indemnifying Party Person thereof, the such Indemnifying Party Person will be entitled, if it so elects elects, by written notice delivered to the such Indemnified Party Person within 20 twenty (20) days after receiving the Indemnified Party's such notice, to assume the defense thereof with counsel reasonably satisfactory to the such Indemnified Party as long as such defense is instituted and continuously maintained in good faith by the Indemnifying PartyPerson. Notwithstanding the foregoing, (i) the such Indemnified Party Person shall also have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless it shall reasonably determine that there is a conflict of interest between such Indemnified Person and Indemnifying Person with respect to such claim or there are or may be legal defenses available to such Indemnified Person which are different from or additional to those available to such Indemnifying Person or a difference of position or potential difference of position exists between or among such Indemnifying Person and Indemnified Person that would make such separate representation advisable in the reasonable opinion of counsel to such Indemnified Party; Person, in which case the fees and expenses of one such counsel will be borne by such Indemnifying Person, (ii) the such Indemnified Party Person shall not have any obligation to give any notice of any assertion of liability by a third party unless such assertion is in writing; , and (iii) the rights of the such Indemnified Party Person to be indemnified hereunder in respect of Indemnifiable Claims such claims resulting from the assertion of liability by third parties shall not be adversely affected by its failure to give notice pursuant to the foregoing unless, and, if so, only to the extent that, the such Indemnifying Party Person is materially prejudiced thereby; and (iv) the Indemnifying Party will consult with the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim; provided however, that the consent of any Indemnifying Party will not be a pre-requisite to any settlement by the Indemnified Party, but in no event shall the Indemnifying Party agree to (x) any performance obligation applicable to the Indemnified Party as part of a settlement without prior approval as to such performance obligation from the affected Indemnified Party; or (y) in the case where Seller is the Indemnifying Party any settlement, which when combined with all other Indemnifiable Claims, is in excess of the Purchase Price. As used in this paragraph, "performance obligation" means actions or obligations other than the payment of money. The Indemnifying Party will not be required to indemnify the Indemnified Party for any amount paid or payable in the settlement of any claim for which the Indemnifying Party has delivered a timely notice of election if such amount was agreed to without the consent of the Indemnifying Party. With respect to any assertion of liability by a third party that results in an Indemnifiable Claimsuch claim, the parties hereto shall make available to each other all relevant information in their possession material to any such assertion. (b) In the event that the such Indemnifying PartyPerson, within 20 twenty (20) days after receipt of the aforesaid notice of an Indemnifiable Claima claim, fails to assume the defense of the such Indemnified Party Person against such Indemnifiable Claimclaim, the such Indemnified Party Person shall have the right to undertake the defense, compromise compromise, or settlement of such action on behalf of and for the account account, expense, and risk of such Indemnifying Person; provided, however, that such Indemnified Person shall not, without such Indemnifying Person's prior written consent, settle or compromise any such claim or consent to entry of any judgment in respect thereof, and such Indemnifying Person shall have no liability with respect to any such compromise or settlement thereof effected without its prior written consent. (c) Notwithstanding anything in this Article XIII to the contrary, such Indemnified Person shall have the right to participate in such defense, compromise, or settlement and such Indemnifying PartyPerson shall not, without such Indemnified Person's written consent (which consent shall not be unreasonably withheld), settle or compromise any such claim or consent to entry of any judgment in respect thereof unless such settlement, compromise, or consent includes as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Person a release from all liability in respect of such claim.

Procedure for Indemnification with Respect to Third. PARTY CLAIMS. (a) If either party (. The liabilities and _____________________ obligations of the "Indemnified Party") determines to seek Party hereto against which indemnification under this Article with respect to Indemnifiable Claims resulting from the assertion of liability by third parties, it shall give notice to the other party is sought hereunder (the "Indemnifying Party") within 30 days of the Indemnified Party's becoming aware of any such Indemnifiable Claim or of facts upon which any such Indemnifiable Claim will be based; the notice shall set forth such information with respect thereto as is then reasonably available to the Indemnified Party's. If any such liability is asserted against the Indemnified Party, and the Indemnified Party notifies the Indemnifying Party thereof, the Indemnifying Party will be entitled, if it so elects by written notice delivered to the Indemnified Party within 20 days after receiving the Indemnified Party's notice, to assume the defense thereof with counsel satisfactory to the Indemnified Party as long as such defense is instituted and continuously maintained in good faith by the Indemnifying Party. Notwithstanding the foregoing, (i) the Indemnified Party shall also have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party; (ii) the Indemnified Party shall not have any obligation to give any notice of any assertion of liability by a third party unless such assertion is in writing; (iii) the rights of the Indemnified Party to be indemnified hereunder in respect of Indemnifiable Claims claims resulting from the assertion of liability or obligation by third parties shall not be adversely affected by its failure subject to the following terms and conditions: (a) Any Seller's Indemnified Party or Buyer's Indemnified Party (collectively, the "Indemnified Parties") seeking indemnification hereunder agrees to give prompt written notice pursuant to the foregoing unlessIndemnifying Party of any claim by a third party which might give rise to a claim based on the indemnity agreements contained in Section 15 hereof, andstating the nature and basis of said claim and the amount thereof, if so, only to the extent that, the Indemnifying Party is materially prejudiced thereby; and (iv) the Indemnifying Party will consult with the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim; provided however, that the consent of any Indemnifying Party will not be a pre-requisite to any settlement by the Indemnified Party, but in no event shall the Indemnifying Party agree to (x) any performance obligation applicable to the Indemnified Party as part of a settlement without prior approval as to such performance obligation from the affected Indemnified Party; or (y) in the case where Seller is the Indemnifying Party any settlement, which when combined with all other Indemnifiable Claims, is in excess of the Purchase Price. As used in this paragraph, "performance obligation" means actions or obligations other than the payment of moneyknown. The Indemnifying Party will not be required shall satisfy its obligation to indemnify the Indemnified Party for any amount paid or payable in under this Section within thirty (30) days after receipt of the settlement of any claim for which foregoing notice unless the Indemnifying Party has delivered a timely notice of election if shall have elected to defend in good faith such amount was agreed to without the consent of the Indemnifying Party. With respect to any assertion of liability by a third party that results claim as provided in an Indemnifiable Claim, the parties hereto shall make available to each other all relevant information in their possession material to any such assertionsubsection (b) hereof. (b) In the event that the Indemnifying Party, within 20 days after receipt of the aforesaid notice of an Indemnifiable Claim, fails to assume the defense of the Indemnified Party against such Indemnifiable Claimshall notify the Indemnifying Party of any claim pursuant to subsection (a) hereof, the Indemnified Indemnifying Party shall have the right to undertake elect to defend such claim (including all actions, suits, proceedings and all proceedings on appeal or _________________________________________________________ PTI COMMUNICATIONS OF ALASKA, INC. 28 - ASSET PURCHASE AGREEMENT for review which counsel deem appropriate), with counsel reasonably satisfactory to the defenseIndemnified Party by written notice to the Indemnified Party within 30 days after receipt of such notice. The Indemnified Party shall make available to the Indemnifying Party and its attorneys and accountants all books and records of the Indemnified Party relating to such proceedings or litigation, and the Parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to ensure the proper and adequate defense of any such action, suit or proceeding. (c) So long as the Indemnifying Party is defending in good faith any such claim, the Indemnified Party shall not compromise or settlement of settle such action on behalf of and for claim, without the account and risk written consent of the Indemnifying Party.

Procedure for Indemnification with Respect to Third. PARTY CLAIMS. (a) If either . The Indemnified Party will give the Indemnifying Party prompt written notice of any third party claim, demand, assessment, suit or proceeding to which the indemnity set forth in Section 7.2 applies, which notice to be effective must describe said claim in reasonable detail (the "Indemnified PartyIndemnification Notice") determines to seek indemnification under this Article with respect to Indemnifiable Claims resulting from the assertion of liability by third parties, it shall give notice to the other party (the "Indemnifying Party") within 30 days of the Indemnified Party's becoming aware of any such Indemnifiable Claim or of facts upon which any such Indemnifiable Claim will be based; the notice shall set forth such information with respect thereto as is then reasonably available to the Indemnified Party's. If any such liability is asserted against the Indemnified Party, and the Indemnified Party notifies the Indemnifying Party thereof, the Indemnifying Party will be entitled, if it so elects by written notice delivered to the Indemnified Party within 20 days after receiving the Indemnified Party's notice, to assume the defense thereof with counsel satisfactory to the Indemnified Party as long as such defense is instituted and continuously maintained in good faith by the Indemnifying Party). Notwithstanding the foregoing, (i) the Indemnified Party shall also have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party; (ii) the Indemnified Party shall not have any obligation to give any notice of any assertion of liability by a third party unless such assertion is in writing; (iii) writing and the rights of the Indemnified Party to be indemnified hereunder in respect of Indemnifiable Claims resulting from the assertion of liability by any third parties party claim shall not be adversely affected by its failure to give notice pursuant to the foregoing unless, unless and, if so, only to the extent that, the Indemnifying Party is materially prejudiced thereby; and (iv) the Indemnifying Party will consult with the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim; provided however, that the consent of any Indemnifying Party will not be a pre-requisite to any settlement by the Indemnified Party, but in no event shall the Indemnifying Party agree to (x) any performance obligation applicable to the Indemnified Party as part of a settlement without prior approval as to such performance obligation from the affected Indemnified Party; or (y) in the case where Seller is the Indemnifying Party any settlement, which when combined with all other Indemnifiable Claims, is in excess of the Purchase Price. As used in this paragraph, "performance obligation" means actions or obligations other than the payment of money. The Indemnifying Party will not be required have the right to indemnify control the defense or settlement of any such action subject to the provisions set forth below, but the Indemnified Party for any amount paid or payable may, at its election, participate in the settlement defense of any claim for which action or proceeding at its sole cost and expense. Should the Indemnifying Party has delivered a fail to defend any such action (except for failure resulting from the Indemnified Party's failure to timely notice give the Indemnification Notice), then, in addition to any other remedy, the Indemnified Party may settle or defend such action or proceeding through counsel of election if its own choosing and may recover from the Indemnifying Party the amount of such amount was agreed to settlement, demand, or any judgment or decree and all of its costs and expenses, including reasonable fees and disbursements of counsel. The Indemnified Party will not compromise or settle any claim without the prior written consent of the Indemnifying Party. With respect to any assertion of liability by a third party that results in an Indemnifiable ClaimParty which consent shall not be unreasonably withheld; PROVIDED, HOWEVER, if such approval is unreasonably withheld, the parties hereto shall make available to each other all relevant information in their possession material to any such assertion. (b) In the event that the Indemnifying Party, within 20 days after receipt of the aforesaid notice of an Indemnifiable Claim, fails to assume the defense liability of the Indemnified Party against will be limited to the total sum represented in the amount of the proposed compromise or settlement and the amount of the Indemnified Party's reasonable counsel fees incurred in defending such Indemnifiable Claimclaim, as permitted by the preceding sentence, accrued at the time said approval is unreasonably withheld. Notwithstanding the preceding sentence, the foregoing limitation on the liability of the Indemnified Party shall have only be applicable if (i) a complete release of the right Indemnifying Party is contemplated to undertake be part of the defense, proposed compromise or settlement of such action on behalf of third party claim and for the account and risk of (ii) the Indemnifying PartyParty withholds its consent to such compromise or settlement.

Procedure for Indemnification with Respect to Third. PARTY CLAIMS.Party ----------- --------------------------------------------------------- Claims. ------ (a) If either the Purchaser or any affiliate of Purchaser determines to seek indemnification (such party (the shall be referred to herein as an "Indemnified Party") determines to seek indemnification under this Article VIII with respect to Indemnifiable Seller and Securityholder Identifiable Claims (such Claims shall be referred to herein as "Identifiable Claims") resulting from the assertion of liability by third parties, it such Indemnified Party shall give notice to the other party parties from which indemnification is sought (the such parties shall be referred to herein as "Indemnifying PartyParties") within 30 60 days of the such Indemnified Party's Party becoming aware of any such Indemnifiable Identifiable Claim or of facts upon which any such Indemnifiable Identifiable Claim will be based; the notice shall set forth such material information with respect thereto as is then reasonably available to the such Indemnified Party's. If In case any such liability is asserted against the any Indemnified Party, and the such Indemnified Party notifies the Indemnifying Party Parties thereof, the Indemnifying Party Parties will be entitled, if it such Indemnifying Parties so elects elect by written notice delivered to the such Indemnified Party within 20 days after receiving the such Indemnified Party's notice, to assume the defense thereof with counsel satisfactory to the Indemnified Party as long as such defense is instituted and continuously maintained in good faith selected by the Indemnifying Party, which counsel shall be reasonably satisfactory to such Indemnified Party. Notwithstanding the foregoing, (i) the such Indemnified Party shall also have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless such Indemnified Party shall reasonably determine that there is a conflict of interest between or among such Indemnified Party and any Indemnifying Party with respect to such Identifiable Claim, in which case the Indemnified Party; fees and expenses of such counsel will be borne by such Indemnifying Parties, (ii) none of the Indemnified Party Parties shall not have any obligation to give any notice of any assertion of liability by a third party unless such assertion is in writing; , and (iii) the rights of the Indemnified Party Parties to be indemnified hereunder in respect of Indemnifiable Identifiable Claims resulting from the assertion of liability by third parties shall not be adversely affected by its their failure to give notice pursuant to the foregoing unless, and, if so, only to the extent that, the such Indemnifying Party is Parties are materially prejudiced thereby; and (iv) the Indemnifying Party will consult with the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim; provided however, that the consent of any Indemnifying Party will not be a pre-requisite to any settlement by the Indemnified Party, but in no event shall the Indemnifying Party agree to (x) any performance obligation applicable to the Indemnified Party as part of a settlement without prior approval as to such performance obligation from the affected Indemnified Party; or (y) in the case where Seller is the Indemnifying Party any settlement, which when combined with all other Indemnifiable Claims, is in excess of the Purchase Price. As used in this paragraph, "performance obligation" means actions or obligations other than the payment of money. The Indemnifying Party will not be required to indemnify the Indemnified Party for any amount paid or payable in the settlement of any claim for which the Indemnifying Party has delivered a timely notice of election if such amount was agreed to without the consent of the Indemnifying Party. With respect to any assertion of liability by a third party that results in an Indemnifiable Identifiable Claim, the parties hereto shall make available to each other all relevant information in their possession material to any such assertion. (b) In the event that the such Indemnifying PartyParties, within 20 days after receipt of the aforesaid notice of an Indemnifiable Identifiable Claim, fails fail to assume the defense of the such Indemnified Party against such Indemnifiable Identifiable Claim, the such Indemnified Party shall have the right to undertake the defense, compromise or settlement of such action on behalf of and for the account and risk of the Indemnifying Party.shall

Procedure for Indemnification with Respect to Third. PARTY CLAIMS.Party --------------------------------------------------------- Claims. ------ (a) If either Purchaser or its Affiliates or Sellers or Stockholders or TV Stockholder (the party (seeking such indemnification hereinafter referred to as the "Indemnified Party" and the party against whom such indemnification is sought is hereinafter referred to as the "Indemnifying Party") determines to seek indemnification under this Article VIII with respect to Indemnifiable Identifiable Claims resulting from the assertion of liability by third parties, it the Indemnified Party shall give notice to the other party (the "Indemnifying Party") Parties within 30 days of the Indemnified Party's Party becoming aware of any such Indemnifiable Identifiable Claim or of facts upon which any such Indemnifiable Identifiable Claim will be based; the notice shall set forth such material information with respect thereto as is then reasonably available to the Indemnified Party's. If In case any such liability is asserted against the Indemnified PartyParty or its affiliates, and the Indemnified Party notifies the Indemnifying Party Parties thereof, the Indemnifying Party Parties will be entitled, if it such Indemnifying Parties so elects elect by written notice delivered to the Indemnified Party within 20 30 days after receiving the Indemnified Party's notice, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Party as long as (and if such defense is instituted and continuously maintained in good faith by Indemnifying Parties so assume such defense, such Indemnified Parties or affiliates thereof shall not compromise or settle such Identifiable Claim without the prior consent of the Indemnifying Party). Notwithstanding the foregoing, (i) the Indemnified Party or its affiliates shall also have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party; , and (ii) the Indemnified Party shall not have any obligation to give any notice of any assertion of liability by a third party unless such assertion is in writing; (iii) the rights of the Indemnified Party or its affiliates to be indemnified hereunder in respect of Indemnifiable Identifiable Claims resulting from the assertion of liability by third parties shall not be adversely affected by its their failure to give notice pursuant to the foregoing unless, and, if so, only to the extent that, the such Indemnifying Party is Parties are materially prejudiced thereby; and (iv) provided, however, the Indemnifying Party will consult with shall not be liable for attorneys fees and expenses incurred by the Indemnified Party before entering into any settlement of such claim or ceasing prior to defend against such claim; provided however, that the consent of any Indemnifying Party will not be a pre-requisite to any settlement by the Indemnified Party, but in no event shall 's giving notice to the Indemnifying Party agree to (x) any performance obligation applicable to the Indemnified Party as part of a settlement without prior approval as to such performance obligation from the affected Indemnified Party; or (y) in the case where Seller is the Indemnifying Party any settlement, which when combined with all other Indemnifiable Claims, is in excess of the Purchase Price. As used in this paragraph, "performance obligation" means actions or obligations other than the payment of money. The Indemnifying Party will not be required to indemnify the Indemnified Party for any amount paid or payable in the settlement of any claim for which the Indemnifying Party has delivered a timely notice of election if such amount was agreed to without the consent of the Indemnifying Partyan Identifiable Claim. With respect to any assertion of liability by a third party that results in an Indemnifiable Identifiable Claim, the parties hereto shall make available to each other all relevant information in their possession material to any such assertion. (b) The Indemnified Party will cooperate in the defense of any Identifiable Claim and will provide full access to documents, assets, properties, books and records and will make available all officers, directors and employees for investigation, depositions and trial. (c) In the event that the such Indemnifying PartyParties, within 20 60 days after receipt of the aforesaid notice of an Indemnifiable Identifiable Claim, fails fail to assume the defense of the Indemnified Party or its affiliates against such Indemnifiable Identifiable Claim, the Indemnified Party or its affiliates shall have the right to undertake the defense, compromise compromise, or settlement of such action on behalf of and for the account account, expense, and risk of such Indemnifying Parties. (d) Notwithstanding anything in this Article VIII to the contrary, if there is a reasonable probability that an Identifiable Claim may materially adversely affect the Indemnified Party or its affiliates, the Indemnified Party or its affiliates shall have the right to participate in such defense, compromise, or settlement and such Indemnifying Parties shall not, without the Indemnified Party's written consent (which consent shall not be unreasonably withheld), settle or compromise any Identifiable Claim or consent to entry of any judgment in respect thereof unless such settlement, compromise, or consent includes as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such Identifiable Claim.

Procedure for Indemnification with Respect to Third. PARTY CLAIMS.Party --------------------------------------------------------- Claims. ------ (a) If either party (the "an Indemnified Party") Person determines to seek indemnification under this Article XIII with respect to Indemnifiable Claims the existence of a claim giving rise to Damages ("Claim") resulting from the assertion of liability by third parties, it parties or an Indemnified Person shall give notice to the other party (the "Indemnifying Party") within 30 days of the Person promptly after such Indemnified Party's becoming Person becomes aware of any such Indemnifiable Claim claim or of facts upon which any such Indemnifiable Claim claim will be based; the notice shall set forth such material information with respect thereto as is then reasonably available to the such Indemnified Party'sPerson. If In case any such liability is asserted against the such Indemnified PartyPerson, and the such Indemnified Party Person notifies the such Indemnifying Party Person thereof, the such Indemnifying Party Person will be entitled, if it so elects elects, by written notice delivered to the such Indemnified Party Person within 20 twenty (20) days after receiving the Indemnified Party's such notice, to assume the defense thereof with counsel reasonably satisfactory to the such Indemnified Party as long as such defense is instituted and continuously maintained in good faith by the Indemnifying PartyPerson. Notwithstanding the foregoing, (i) the such Indemnified Party Person shall also have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless it shall reasonably determine that there is a conflict of interest between such Indemnified Person and Indemnifying Person with respect to such claim or there are or may be legal defenses available to such Indemnified Person which are different from or additional to those available to such Indemnifying Person or a difference of position or potential difference of position exists between or among such Indemnifying Person and Indemnified Person that would make such separate representation advisable in the reasonable opinion of counsel to such Indemnified Party; Person, in which case the fees and expenses of one such counsel will be borne by such Indemnifying Person, (ii) the such Indemnified Party Person shall not have any obligation to give any notice of any assertion of liability by a third party unless such assertion is in writing; , and (iii) the rights of the such Indemnified Party Person to be indemnified hereunder in respect of Indemnifiable Claims such claims resulting from the assertion of liability by third parties shall not be adversely affected by its failure to give notice pursuant to the foregoing unless, and, if so, only to the extent that, the such Indemnifying Party Person is materially prejudiced thereby; and (iv) the Indemnifying Party will consult with the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim; provided however, that the consent of any Indemnifying Party will not be a pre-requisite to any settlement by the Indemnified Party, but in no event shall the Indemnifying Party agree to (x) any performance obligation applicable to the Indemnified Party as part of a settlement without prior approval as to such performance obligation from the affected Indemnified Party; or (y) in the case where Seller is the Indemnifying Party any settlement, which when combined with all other Indemnifiable Claims, is in excess of the Purchase Price. As used in this paragraph, "performance obligation" means actions or obligations other than the payment of money. The Indemnifying Party will not be required to indemnify the Indemnified Party for any amount paid or payable in the settlement of any claim for which the Indemnifying Party has delivered a timely notice of election if such amount was agreed to without the consent of the Indemnifying Party. With respect to any assertion of liability by a third party that results in an Indemnifiable Claimsuch claim, the parties hereto shall make available to each other all relevant information in their possession material to any such assertion. (b) In the event that the such Indemnifying PartyPerson, within 20 twenty (20) days after receipt of the aforesaid notice of an Indemnifiable Claima claim, fails to assume the defense of the such Indemnified Party Person against such Indemnifiable Claimclaim, the such Indemnified Party Person shall have the right to undertake the defense, compromise compromise, or settlement of such action on behalf of and for the account account, expense, and risk of such Indemnifying Person; provided, however, that such Indemnified Person shall not, without such Indemnifying Person's prior written consent, settle or compromise any such claim or consent to entry of any judgment in respect thereof, and such Indemnifying Person shall have no liability with respect to any such compromise or settlement thereof effected without its prior written consent. (c) Notwithstanding anything in this Article XIII to the contrary, such Indemnified Person shall have the right to participate in such defense, compromise, or settlement and such Indemnifying PartyPerson shall not, without such Indemnified Person's written consent (which consent shall not be unreasonably withheld), settle or compromise any such claim or consent to entry of any judgment in respect thereof unless such settlement, compromise, or consent includes as an unconditional term thereof the giving by the claimant or the plaintiff to such Indemnified Person a release from all liability in respect of such claim.