Common use of Settlement of Third Party Claims Clause in Contracts

Settlement of Third Party Claims. The Indemnifying Party shall not be liable for any Third Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party shall be taken into account in the computation of the Cumulative Threshold Amount). In such connection, in the event that (x) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of settlement of a Third Party Claim (a “Settlement Offer”), the Indemnified Party shall notify the Indemnifying Party of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either the Indemnified Party or the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue the defense of such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall be limited to the lesser of: (i) the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered by the Indemnified Party (or, if the Purchaser is the Indemnified Party, the Company), taking into account the final determination of the Third Party Claim.

Settlement of Third Party Claims. The Indemnifying Indemnified Party shall not be liable for any Third Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is the Indemnified Party, no amounts payable in respect of any such settlement or compromise of unilaterally settle a Third Party Claim made for which it seeks or may seek to be indemnified by the Indemnifying Party without the prior written consent of the Indemnifying Party shall be taken into account unless (i) in the computation case of settlement of claims against the Indemnified Party, such settlement will not create any financial liability or other obligation on the part of the Cumulative Threshold Amount). In Indemnifying Party and provides for a complete release of the Indemnifying Party’s continued obligation to defend and/or indemnify the Indemnified Party; or (ii) in the case of a settlement of claims against both the Indemnified Party and the Indemnifying Party, such connectionsettlement will not create any financial liability or other obligation on the part of the Indemnifying Party and provides, in customary form, for the event that (x) unconditional release of each Indemnifying Party from all liabilities and obligations in connection with such Third Party Claim. For the avoidance of doubt, this Section does not require an Indemnified Party to resolve any Third Party Claims against an Indemnifying Party in order to settle claims brought by a third party against the Indemnified Party. Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not unilaterally settle any Third Party Claim without the prior written consent of the Indemnified Party (which shall not be unreasonably withheld) unless such settlement will not lead to financial liability or if other obligation on the Purchaser is the Indemnified Party, the Company) shall receive from a Third Party or (y) part of the Indemnified Party (or if and provides, in customary form, for the Purchaser is the unconditional release of each Indemnified Party, the Company) shall propose to make to Party from all liabilities and obligations in connection with such Third Party Claim. Direct Claims. Any Action by an Indemnified Party on account of a Third Party, an offer of settlement of Loss which does not result from a Third Party Claim (a “Settlement OfferDirect Claim”)) shall be asserted by the Indemnified Party by giving the Indemnifying Party written notice thereof prior to the expiration of the applicable survival period, if any, relating to the circumstance giving rise to such Direct Claim. Such notice by the Indemnified Party shall notify describe the Indemnifying Party Direct Claim in reasonable detail, shall include copies of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offerall material written evidence thereof, and shall provide with such notice all related available supporting documentation indicate the estimated amount, if reasonably required to enable the Indemnifying Party to assess the relative merits practicable, of the Settlement Offer. At the reasonable request of either Loss that has been or may be sustained by the Indemnified Party or the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine have 30 days after its receipt of such notice to respond in writing to such Direct Claim. The Indemnified Party shall allow the exercise of Indemnifying Party and its own business judgment whether professional advisors to investigate the matter or not circumstance alleged to consent give rise to the Settlement Offer. In Direct Claim, and whether and to what extent any amount is payable in respect of the event that a Settlement Offer is received which Direct Claim, and the Indemnified Party shall assist the Indemnifying Party’s investigation by giving such information and assistance (including access to Sellers’ premises and personnel and the right to examine and copy any accounts, but documents or records) as the Indemnifying Party or any of its professional advisors may reasonably request. If the Indemnifying Party does not the Indemnified Party, is willing to acceptso respond within such 30 day period, the Indemnified Indemnifying Party may elect shall be deemed to continue the defense of have rejected such Third Party Claim at its own expenseclaim, in which case the liability of the Indemnifying Indemnified Party shall be limited free to the lesser of: (i) the amount of Damages calculated pursue such remedies as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered by may be available to the Indemnified Party (or, if on the Purchaser is terms and subject to the Indemnified Party, the Company), taking into account the final determination provisions of the Third Party Claimthis Agreement.

Settlement of Third Party Claims. The Indemnifying In the event that the Indemnified Party shall not be liable for settles any Third Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party, the Indemnifying Party shall be taken into account in have no further indemnification obligations under this Article XII with respect to such Third Party Claim; provided, however, that if the computation Indemnifying Party refuses to defend or otherwise handle such Third Party Claim and it is subsequently determined that the Indemnifying Party is or was obligated to defend or indemnify the Indemnified Party with respect to such Third Party Claim, then the Indemnifying Party shall remain obligated with respect to such settlement amount. If the Indemnifying Party controls the defense of any such Third Party Claim, the Cumulative Threshold Amount). In such connection, in Indemnifying Party shall obtain the event that (x) prior written consent of the Indemnified Party (which shall not be unreasonably withheld or if the Purchaser is the Indemnified Party, the Companydelayed) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of before entering into any settlement of a Third Party Claim (or ceasing to defend such Third Party Claim if, pursuant to or as a “Settlement Offer”), the Indemnified Party shall notify the Indemnifying Party result of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding theretosettlement or cessation, injunctive or reasonably in advance of making such Settlement Offer, and other equitable relief shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either be imposed against the Indemnified Party or if such settlement or cessation does not expressly and unconditionally release the Indemnifying Party, the Parties will consult in good faith Indemnified Party from all liabilities and obligations with respect to any such Settlement Offer. The Indemnifying Third Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement OfferClaim, without prejudice. In the event that the Indemnifying Party proposes a Settlement Offer is received settlement to any Third Party Claim with respect to which the Indemnifying PartyParty is or was entitled to defend, but not which settlement is satisfactory to the Indemnified Partyparty instituting such Third Party Claim, is willing to accept, and the Indemnified Party may elect withholds its consent to continue such settlement, and thereafter a final judgment is entered against the defense Indemnifying Party or Indemnified Party pursuant to which Losses exceed the amount of the proposed settlement, then in such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall be limited have no obligation to indemnify the lesser of: (i) Indemnified Party under this Article XII against and in respect of the amount by which the Losses resulting from such final judgment exceed the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered by the Indemnified Party (or, if the Purchaser is the Indemnified Party, the Company), taking into account the final determination of the Third Party Claimsettlement.

Settlement of Third Party Claims. The In connection with the settlement or compromise of any Third Party Claim (except for any Third Party Claims that are indemnifiable under SECTION 8.2(a)(viii), the process for which is set forth in SECTION 8.2(d)(ii)), the Indemnifying Party shall not, without the written consent of the Indemnified Party (which consent shall not be liable unreasonably withheld or delayed), (A) settle or compromise any Third Party Claims or consent to the entry of any judgment which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnified Party of a written release from all liability in respect of such Third Party Claim of all Indemnified Parties affected by such Third Party Claim or (B) settle or compromise any Third Party Claim if the settlement or compromise imposes equitable remedies or material obligations on the Indemnified Party other than financial obligations for which such Indemnified Party will be indemnified hereunder or (C) settle or compromise any Third Party Claim if the Indemnified Party will be required to make any payment with respect to such compromise or settlement due to the application of the limitations of SECTION 8.3. No Third Party Claim which is being defended in good faith by the Indemnifying Party or which is being defended by the Indemnified Party in accordance with the terms of this Agreement shall be settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is by the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party (which consent shall not be taken into account in the computation of the Cumulative Threshold Amountunreasonably withheld or delayed). In such connection; PROVIDED, in the event that (x) the Indemnified Party (or HOWEVER, if the Purchaser is the Indemnified Party, the Company) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of settlement of a Third Party Claim is being defended by an Indemnified Party pursuant to the last sentence of clause (a “Settlement Offer”), ii) above (unless the Indemnifying Party and Indemnified Party mutually agree that the Indemnified Party shall notify defend such Third Party Claim), the limitations on the Indemnified Party's right to settle or compromise set forth in this clause (iii) shall not apply to such Indemnified Party, unless the Indemnifying Party has been advancing (in a timely manner) payment of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party Indemnified Party's costs and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide expenses associated with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either the Indemnified Party or the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue the defense of such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall be limited to the lesser of: (i) the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered upon demand therefor by the Indemnified Party (or, if subject to the Purchaser is undertaking of the Indemnified Party, Party to reimburse such advances in the Companyevent such costs of defense are not ultimately to be indemnifiable under this ARTICLE VIII), taking into account the final determination of the Third Party Claim.. E-91

Settlement of Third Party Claims. The Indemnifying Party shall not be liable for any Third Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party shall be taken into account in due by the computation of the Cumulative Threshold Amount)Indemnifying Party. In such connection, in the event that (x) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall (x) receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of settlement of a Third Party Claim (a “Settlement Offer”), the Indemnified Party shall notify the Indemnifying Party of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either the Indemnified Party or the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, Party is willing to accept, the Indemnified Party may elect to continue the defense of such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall be limited to the lesser of: (i) the amount of capped at Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered by the Indemnified Party (or, if the Purchaser is the Indemnified Party, the Company), taking into account the final determination of the Third Party Claim.

Settlement of Third Party Claims. The In connection with the settlement or compromise of any Third Party Claim (except for any Third Party Claims that are indemnifiable under either SECTION 8.2(a)(vi) or SECTION 8.2(a)(viii), the process for which is set forth in SECTION 8.2(d)(ii)), the Indemnifying Party shall not, without the written consent of the Indemnified Party (which consent shall not be liable unreasonably withheld or delayed), (A) settle or compromise any Third Party Claims or consent to the entry of any judgment which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnified Party of a written release from all liability in respect of such Third Party Claim of all Indemnified Parties affected by such Third Party Claim or (B) settle or compromise any Third Party Claim if the settlement or compromise imposes equitable remedies or material obligations on the Indemnified Party other than financial obligations for which such Indemnified Party will be indemnified hereunder or (C) settle or compromise any Third Party Claim if the Indemnified Party will be required to make any payment with respect to such compromise or settlement due to the application of the limitations of SECTION 8.3. No Third Party Claim which is being defended in good faith by the Indemnifying Party or which is being defended by the Indemnified Party in accordance with the terms of this Agreement shall be settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is by the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party (which consent shall not be taken into account in the computation of the Cumulative Threshold Amountunreasonably withheld or delayed). In such connection; PROVIDED, in the event that (x) the Indemnified Party (or HOWEVER, if the Purchaser is the Indemnified Party, the Company) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of settlement of a Third Party Claim is being defended by an Indemnified Party pursuant to the last sentence of clause (a “Settlement Offer”), ii) above (unless the Indemnifying Party and Indemnified Party mutually agree that the Indemnified Party shall notify defend such Third Party Claim), the limitations on the Indemnified Party's right to settle or compromise set forth in this clause (iii) shall not apply to such Indemnified Party, unless the Indemnifying Party has been advancing (in a timely manner) payment of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party Indemnified Party's costs and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide expenses associated with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either the Indemnified Party or the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue the defense of such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall be limited to the lesser of: (i) the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered upon demand therefor by the Indemnified Party (or, if subject to the Purchaser is undertaking of the Indemnified Party, Party to reimburse such advances in the Companyevent such costs of defense are not ultimately to be indemnifiable under this ARTICLE VIII), taking into account the final determination of the Third Party Claim.

Settlement of Third Party Claims. The Indemnifying Where the Indemnifier has agreed to assume the defence of any Third Party Claim, and, thereafter, fails to take reasonable steps necessary to defend diligently such Third Party Claim within 30 days after receiving notice from the Indemnified Party that the Indemnified Party bona fide believes on reasonable grounds that the Indemnifier has failed to take such steps, the Indemnified Party may, at its option, elect to assume the defence of and to compromise or settle the Third Party Claim assisted by counsel of its own choosing (provided that the Indemnified Party may not, as part of the settlement or compromise, require the Indemnifier to admit any liability or assume any financial or other material obligation) and, subject to Section 5.2, the Indemnifier shall not be liable for any Loss of the Indemnified Party in connection with such Third Party Claim which Claim, provided that the Indemnified Party is settled or otherwise compromised or entitled to indemnification hereunder in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without Loss. Without the prior written consent of the Indemnifying Party shall be taken into account in the computation of the Cumulative Threshold Amount). In such connection, in the event that (x) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) Indemnifier shall receive from a not enter into any compromise or settlement of any Third Party Claim which would lead to liability or (y) create any financial or other material obligation on the Indemnified Party (or if the Purchaser is part of the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of settlement of a Third Party Claim (a “Settlement Offer”), the Indemnified Party shall notify the Indemnifying Party of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either the Indemnified Party or the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement Offer. In the event that a Settlement Offer the Indemnifier agrees to assume the defence of any Third Party Claim and, thereafter, it is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue the defense of determined that such Third Party Claim at its own expensewas not a Claim for which the Indemnified Party was entitled to indemnification hereunder, all reasonable costs incurred by the Indemnifier in which case the liability of the Indemnifying Party connection with such defence and determination shall be limited to the lesser of: (i) the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered reimbursed by the Indemnified Party (or, if such costs being deemed to be a Loss for which the Purchaser is the Indemnified Party, the Companyprovisions of Section 5.12 shall apply), taking into account the final determination of the Third Party Claim.

Settlement of Third Party Claims. The Indemnifying Party shall not be liable for any Third Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party shall be taken into account in the computation of the Cumulative Threshold Amount). In such connection, in the event that (x) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of settlement of a Third Party Claim (a “"Settlement Offer”"), the Indemnified Party shall notify the Indemnifying Party of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either the Indemnified Party or the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue the defense of such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall be limited to the lesser of: (i) the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered by the Indemnified Party (or, if the Purchaser is the Indemnified Party, the Company), taking into account the final determination of the Third Party Claim.

Settlement of Third Party Claims. The Should any claim be made by a -------------------------------- person or entity not a party to this Agreement with respect to any matter covered by the indemnities contained in this Article IX or in Article X, including without limitation, any claim by a governmental body in connection with the audit of any federal, state or local tax return, the party or parties being indemnified (the "Indemnified Party"), on not less than 30 days' notice to the party making the indemnification (the "Indemnifying Party"), may make settlement (including payment in full) of such claim and such settlement shall be binding upon all parties hereto for the purposes hereof, unless within said 30-day period the Indemnifying Party shall have requested the Indemnified Party to contest such claim at the expense of the Indemnifying Party. In such event, the Indemnified Party shall, upon posting of the bond or alternative security described below, comply with such request and the Indemnifying Party shall have the right to direct the defense of such claim or any litigation based thereon at the Indemnifying Party's expense through counsel of its own choosing on condition that such counsel agrees to look solely to the Indemnifying Party for payment of its fees. If the Indemnifying Party does retain counsel on such terms, then the Indemnified Party shall not be liable entitled to indemnification under the next sentence of this paragraph for the cost of any Third separate counsel it may retain in the matter. In the event the Indemnifying Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is shall so request the Indemnified PartyParty to contest such claim, no amounts payable the Indemnifying Party shall first furnish to the Indemnified Party as indemnity against the contested claim a bond in respect the amount of the third party claim plus the amount of any expenses reasonably likely to be incurred by the Indemnified Party in contesting , defending and litigating the same, provided, however, that to the extent any balance is owing under this Agreement from the Indemnified Party to the Indemnifying Party (e.g., any balance owed under the Note or the Annual Earn-Out Payment), the Indemnified Party shall be required to accept as alternative security for such settlement indemnity a suspension of any payments of such balance until final resolution of the third party claim. In no event shall the Indemnifying Party or compromise of a Third Party Claim made its counsel, without the prior written consent of the Indemnifying Party shall be taken into account in Indemnified Party, settle or compromise any claim or consent to the computation entry of any judgment which does not include as an unconditional term thereof the Cumulative Threshold Amount). In such connection, in giving by the event that (x) claimant or the plaintiff to the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall receive a release from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of settlement of a Third Party Claim (a “Settlement Offer”), the Indemnified Party shall notify the Indemnifying Party all liability in respect of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either the Indemnified Party or the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue the defense of such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall be limited to the lesser of: (i) the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered by the Indemnified Party (or, if the Purchaser is the Indemnified Party, the Company), taking into account the final determination of the Third Party Claimclaim.

Settlement of Third Party Claims. The Should any claim be made by a person or entity not a party to this Agreement with respect to any matter covered by the indemnities contained in this Article VI, including without limitation, any claim by a governmental body in connection with the audit of any federal, state or local tax return, the party or parties being indemnified (the "Indemnified Party"), on not less than 30 days' notice to the party making the indemnification (the "Indemnifying Party"), may make settlement (including payment in full) of such claim and such settlement shall be binding upon all parties hereto for the purposes hereof, unless within said 30-day period the Indemnifying Party shall have requested the Indemnified Party to contest such claim at the expense of the Indemnifying Party. In such event, the Indemnified Party shall, upon posting of the bond or alternative security described below, comply with such request and the Indemnifying Party shall have the right to direct the defense of such claim or any litigation based thereon at the Indemnifying Party's expense through counsel of its own choosing on condition that such counsel agrees to look solely to the Indemnifying Party for payment of its fees. If the Indemnifying Party does retain counsel on such terms, then the Indemnified Party shall not be liable entitled to indemnification under the next sentence of this paragraph for the cost of any Third separate counsel it may retain in the matter. In the event the Indemnifying Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is shall so request the Indemnified PartyParty to contest such claim, no amounts payable the Indemnifying Party shall first furnish to the Indemnified Party as indemnity against the contested claim a bond in respect the amount of the third party claim plus the amount of any such settlement expenses reasonably likely to be incurred by the Indemnified Party in contesting, defending and litigating the same. In no event shall the Indemnifying Party or compromise of a Third Party Claim made its counsel, without the prior written consent of the Indemnifying Party shall be taken into account in Indemnified Party, settle or compromise any claim or consent to the computation entry of any judgment which does not include as an unconditional term thereof the Cumulative Threshold Amount). In such connection, in giving by the event that (x) claimant or the plaintiff to the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall receive a release from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of settlement of a Third Party Claim (a “Settlement Offer”), the Indemnified Party shall notify the Indemnifying Party all liability in respect of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either the Indemnified Party or the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue the defense of such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall be limited to the lesser of: (i) the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered by the Indemnified Party (or, if the Purchaser is the Indemnified Party, the Company), taking into account the final determination of the Third Party Claimclaim.

Settlement of Third Party Claims. The Indemnifying In the event that the Indemnified Party shall not be liable for settles any Third Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party, the Indemnifying Party shall be taken into account in have no further indemnification obligations under this Article XIII with respect to such Third Party Claim; provided, however, that if the computation Indemnifying Party refuses to defend or otherwise handle such Third Party Claim and it is subsequently determined that the Indemnifying Party is or was obligated to defend or indemnify the Indemnified Party with respect to such Third Party Claim, then the Indemnifying Party shall remain obligated with respect to such settlement amount. If the Indemnifying Party controls the defense of any such Third Party Claim, the Cumulative Threshold Amount). In such connection, in Indemnifying Party shall obtain the event that (x) prior written consent of the Indemnified Party (which shall not be unreasonably withheld or if the Purchaser is the Indemnified Party, the Companydelayed) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of before entering into any settlement of a Third Party Claim (or ceasing to defend such Third Party Claim if, pursuant to or as a “Settlement Offer”), the Indemnified Party shall notify the Indemnifying Party result of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding theretosettlement or cessation, injunctive or reasonably in advance of making such Settlement Offer, and other equitable relief shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either be imposed against the Indemnified Party or if such settlement or cessation does not expressly and unconditionally release the Indemnifying Party, the Parties will consult in good faith Indemnified Party from all liabilities and obligations with respect to any such Settlement Offer. The Indemnifying Third Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement OfferClaim, without prejudice. In the event that the Indemnifying Party proposes a Settlement Offer is received settlement to any Third Party Claim with respect to which the Indemnifying PartyParty is or was entitled to defend, but not which settlement is satisfactory to the Indemnified Partyparty instituting such Third Party Claim, is willing to accept, and the Indemnified Party may elect withholds its consent to continue such settlement, and thereafter a final judgment is entered against the defense Indemnifying Party or Indemnified Party pursuant to which Losses exceed the amount of the proposed settlement, then in such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall be limited have no obligation to indemnify the lesser of: (i) Indemnified Party under this Article XIII against and in respect of the amount by which the Losses resulting from such final judgment exceed the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered by the Indemnified Party (or, if the Purchaser is the Indemnified Party, the Company), taking into account the final determination of the Third Party Claimsettlement.

Settlement of Third Party Claims. The Should any claim be made by a person or entity not a party to this Agreement with respect to any matter covered by the indemnities contained in this Article VI, including without limitation, any claim by a governmental body in connection with the audit of any federal, state or local tax return, the party or parties being indemnified (the “Indemnified Party”), on not less than 30 days’ notice to the party making the indemnification (the “Indemnifying Party”), may make settlement (including payment in full) of such claim and such settlement shall be binding upon all parties hereto for the purposes hereof, unless within said 30-day period the Indemnifying Party shall have requested the Indemnified Party to contest such claim at the expense of the Indemnifying Party. In such event, the Indemnified Party shall, upon posting of the bond or alternative security described below, comply with such request and the Indemnifying Party shall have the right to direct the defense of such claim or any litigation based thereon at the Indemnifying Party’s expense through counsel of its own choosing on condition that such counsel agrees to look solely to the Indemnifying Party for payment of its fees. If the Indemnifying Party does retain counsel on such terms, then the Indemnified Party shall not be liable entitled to indemnification under the next sentence of this paragraph for the cost of any Third separate counsel it may retain in the matter. In the event the Indemnifying Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is shall so request the Indemnified PartyParty to contest such claim, no amounts payable the Indemnifying Party shall first furnish to the Indemnified Party as indemnity against the contested claim a bond in respect the amount of the third party claim plus the amount of any such settlement expenses reasonably likely to be incurred by the Indemnified Party in contesting, defending and litigating the same. In no event shall the Indemnifying Party or compromise of a Third Party Claim made its counsel, without the prior written consent of the Indemnifying Party shall be taken into account in Indemnified Party, settle or compromise any claim or consent to the computation entry of any judgment which does not include as an unconditional term thereof the Cumulative Threshold Amount). In such connection, in giving by the event that (x) claimant or the plaintiff to the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall receive a release from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of settlement of a Third Party Claim (a “Settlement Offer”), the Indemnified Party shall notify the Indemnifying Party all liability in respect of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either the Indemnified Party or the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue the defense of such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall be limited to the lesser of: (i) the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered by the Indemnified Party (or, if the Purchaser is the Indemnified Party, the Company), taking into account the final determination of the Third Party Claimclaim.

Settlement of Third Party Claims. The Indemnifying In the event that the Indemnified Party shall not be liable for settles any Third Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party, the Indemnifying Party shall be taken into account in have no further indemnification obligations under this Article V with respect to such Third Party Claim; provided, however, that if the computation Indemnifying Party refuses to defend or otherwise handle such Third Party Claim and it is subsequently determined that the Indemnifying Party is or was obligated to defend or indemnify the Indemnified Party with respect to such Third Party Claim, then the Indemnifying Party shall remain obligated with respect to such settlement amount. If the Indemnifying Party controls the defense of any such Third Party Claim, the Cumulative Threshold Amount). In such connection, in Indemnifying Party shall obtain the event that (x) prior written consent of the Indemnified Party (which shall not be unreasonably withheld or if the Purchaser is the Indemnified Party, the Companydelayed) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of before entering into any settlement of a Third Party Claim (or ceasing to defend such Third Party Claim if, pursuant to or as a “Settlement Offer”), the Indemnified Party shall notify the Indemnifying Party result of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding theretosettlement or cessation, injunctive or reasonably in advance of making such Settlement Offer, and other equitable relief shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either be imposed against the Indemnified Party or if such settlement or cessation does not expressly and unconditionally release the Indemnifying Party, the Parties will consult in good faith Indemnified Party from all liabilities and obligations with respect to any such Settlement Offer. The Indemnifying Third Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement OfferClaim, without prejudice. In the event that the Indemnifying Party proposes a Settlement Offer is received settlement to any Third Party Claim which the Indemnifying PartyParty is or was entitled to defend, but not which settlement is satisfactory to the Indemnified Partyparty instituting such Third Party Claim, is willing to accept, and the Indemnified Party may elect withholds its consent to continue such settlement, and thereafter a final judgment is entered against the defense Indemnifying Party or Indemnified Party pursuant to which damages exceed the amount of the proposed settlement, then in such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall be limited have no obligation to indemnify the lesser of: (i) Indemnified Party under this Article V against and in respect of the amount by which the damages resulting from such final judgment exceed the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered by the Indemnified Party (or, if the Purchaser is the Indemnified Party, the Company), taking into account the final determination of the Third Party Claimsettlement.

Settlement of Third Party Claims. The If the Indemnifying Party shall not be liable for fails to assume control of the defence of any Third Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party shall be taken into account in the computation of the Cumulative Threshold Amount). In such connection, in the event that (x) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of settlement of a Third Party Claim (a “Settlement Offer”)Claim, the Indemnified Party shall notify have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of such Settlement Offer as promptly as practicable upon receipt thereof from the negotiation, settlement or defence of any Third Party and reasonably in advance of responding theretoClaim, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess shall not settle any Third Party Claim without the relative merits written consent of the Settlement Offer. At the reasonable request of either the Indemnified Party or the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to acceptwhich consent shall not be unreasonably withheld or delayed; provided, the Indemnified Party may elect to continue the defense of such Third Party Claim at its own expensehowever, in which case that the liability of the Indemnifying Party shall be limited to the lesser of: proposed settlement amount if any such consent is not obtained for any reason. Claims Involving Taxes In the case of any proposed or actual assessment of a Tax liability of the Business for which the Purchaser or Land Purchaser is entitled to indemnification from the Vendor or any corporation within the Vendor's Group as provided herein, the Purchaser or Land Purchaser shall give prompt notice to the Vendor of such proposed or actual assessments in accordance with section 9.5 together with a copy of any related correspondence and the Purchaser or Land Purchaser, as the case may be, shall cause the Subco to contest such proposed or actual assessment in the manner directed by the Vendor (iin consultation with the Purchaser or Land Purchaser, as the case may be) through the administrative procedures or judicial appeal procedures available under the relevant Tax laws and regulations. No settlement in respect of such Tax liability shall be agreed to by the Purchaser or the Subco without the prior written consent of the Vendor, not to be unreasonably withheld. The Purchaser or Land Purchaser, as the case may be, shall not cause the relevant Subco to pay the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; assessment, and (ii) the Damages actually suffered by the Indemnified Party (orinterest or penalties, if the Purchaser is the Indemnified Partyany, the Company), taking into account prior to the final determination of the dispute except if requested in writing to do so by the Vendor. If the relevant Subco is required by law, or the Vendor requests the Purchaser or the Land Purchaser, as the case may be, to cause the relevant Subco, to pay the amount of the assessment pending the outcome of the dispute, the Purchaser or Land Purchaser, as the case may be, shall cause the relevant Subco to pay the Tax and shall be entitled to immediate indemnification from the Vendor or the relevant entity within the Vendor's Group (other than any Subco). If the relevant Subco subsequently receives a refund of all of part of the amount paid in respect of such assessment, the relevant Subco shall pay the Vendor or the relevant corporation in the Vendor Group (other than any Subco) the portion of the refund funded by the Vendor (to the extent of the indemnification payment) plus a corresponding portion of the interest, if any, that is paid by the appropriate Taxing Authority to the relevant Subco in respect of the refund. Co-operation The Indemnified Party and the Indemnifying Party shall co-operate fully with each other with respect to Third Party ClaimClaims, and shall keep each other fully advised with respect thereto (including supplying copies of all relevant documentation promptly as it becomes available).

Settlement of Third Party Claims. The In connection with the settlement or compromise of any Third Party Claim, the Indemnifying Party shall not, without the written consent of the Indemnified Party (which consent shall not be liable unreasonably withheld), (1) settle or compromise any Third Party Claims or consent to the entry of any judgment which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnified Party of a written release from all liability in respect of such Third Party Claim of all Indemnified Parties affected by such Third Party Claim or (2) settle or compromise any Third Party Claim if the settlement or compromise imposes equitable remedies or obligations on the Indemnified Party other than financial obligations for which such Indemnified Party will be indemnified hereunder or (3) settle or compromise any Third Party Claim if the Indemnified Party will be required to make any payment with respect to such compromise or settlement due to the application of the limitations of Section 15(d). No Third Party Claim which is being defended in good faith by the Indemnifying Party or which is being defended by the Indemnified Party in accordance with the terms of this Agreement shall be settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is by the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party (which consent shall not be taken into account in the computation of the Cumulative Threshold Amountunreasonably withheld, conditioned or delayed). In such connection; provided, in the event that (x) the Indemnified Party (or however, if the Purchaser is the Indemnified Party, the Company) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of settlement of a Third Party Claim is being defended by an Indemnified Party pursuant to the last sentence of clause (a “Settlement Offer”), B) above (unless the Indemnifying Party and Indemnified Party mutually agree that the Indemnified Party shall notify defend such Third Party Claim), the limitations on the Indemnified Party's right to settle or compromise set forth in this clause (C) shall not apply to such Indemnified Party, unless the Indemnifying Party has been advancing (in a timely manner) payment of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party Indemnified Party's costs and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide expenses associated with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either the Indemnified Party or the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue the defense of such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall be limited to the lesser of: (i) the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered upon demand therefor by the Indemnified Party (or, if subject to the Purchaser is undertaking of the Indemnified Party, Party to reimburse such advances in the Companyevent such costs of defense are not ultimately to be indemnifiable under this Section 15), taking into account the final determination of the Third Party Claim.

Settlement of Third Party Claims. The In connection with the settlement or compromise of any Third Party Claim, the Indemnifying Party shall not, without the written consent of the Indemnified Party (which consent shall not be liable unreasonably withheld), (A) settle or compromise any Third Party Claims or consent to the entry of any judgment which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnified Party of a written release from all liability in respect of such Third Party Claim of all Indemnified Parties affected by such Third Party Claim or (B) settle or compromise any Third Party Claim if the settlement or compromise imposes equitable remedies or obligations on the Indemnified Party other than financial obligations for which such Indemnified Party will be indemnified hereunder or (C) settle or compromise any Third Party Claim if the Indemnified Party will be required to make any payment with respect to such compromise or settlement due to the application of the limitations of Section 10.4. No Third Party Claim which is being defended in good faith by the Indemnifying Party or which is being defended by the Indemnified Party in accordance with the terms of this Agreement shall be settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is by the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party (which consent shall not be taken into account in the computation of the Cumulative Threshold Amountunreasonably withheld, conditioned or delayed). In such connection; provided, in the event that (x) the Indemnified Party (or however, if the Purchaser is the Indemnified Party, the Company) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of settlement of a Third Party Claim is being defended by an Indemnified Party pursuant to the last sentence of clause (a “Settlement Offer”), ii) above (unless the Indemnifying Party and Indemnified Party mutually agree that the Indemnified Party shall notify defend such Third Party Claim), the limitations on the Indemnified Party's right to settle or compromise set forth in this clause (iii) shall not apply to such Indemnified Party, unless the Indemnifying Party has been advancing (in a timely manner) payment of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party Indemnified Party's costs and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide expenses associated with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either the Indemnified Party or the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue the defense of such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall be limited to the lesser of: (i) the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered upon demand therefor by the Indemnified Party (or, if subject to the Purchaser is undertaking of the Indemnified Party, Party to reimburse such advances in the Companyevent such costs of defense are not ultimately to be indemnifiable under this Article X), taking into account the final determination of the Third Party Claim.

Settlement of Third Party Claims. In connection with any indemnification claim arising out of a claim or legal proceeding (a “Third Party Claim”) by a person or entity who is not a Party, the Indemnifying Party shall be entitled to control the defense of any such claim with counsel reasonably acceptable to the Indemnified Party at the Indemnifying Party’s own cost and expense, including the cost and expense of reasonable attorneys’ fees and disbursements in connection with such defense. The Indemnifying Party shall not be liable for entitled to agree to a settlement of, or the stipulation of any judgment arising from, any such Third Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is Claim, provided, however, that the Indemnified Party, no amounts payable in respect Party shall have the right to consult as to the conduct of any such settlement or compromise stipulation, including, without limitation, the strategy to be employed and the amounts and nature of a Third any settlement or the terms of any stipulation, including consent thereto, which consent shall not be unreasonably withheld or delayed by the Indemnified Party; provided, further, that no such consent shall be required from the Indemnified Party Claim made without the prior written consent of if (A) the Indemnifying Party shall pays or causes to be taken into account in paid all Losses arising out of such settlement or judgment concurrently with the computation of the Cumulative Threshold Amount). In such connection, in the event that effectiveness thereof (x) as well as all other Losses theretofore incurred by the Indemnified Party which then remain unpaid or unreimbursed and are otherwise indemnifiable pursuant to this Article VIII), (or if B) in the Purchaser case of a settlement, the settlement is conditioned upon a complete release by the claimant of the Indemnified Party, and (C) such settlement or judgment does not require the Company) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer encumbrance of settlement any asset of a Third Party Claim (a “Settlement Offer”), the Indemnified Party shall notify the Indemnifying Party of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either the Indemnified Party or the Indemnifying Partyimpose any restriction upon its conduct of business or otherwise materially adversely affect its business, the Parties will consult in good faith with respect to including, without limitation, use of any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue the defense of such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall be limited to the lesser of: (i) the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered by the Indemnified Party (or, if the Purchaser is the Indemnified Party, the Company), taking into account the final determination of the Third Party ClaimIntellectual Property.

Settlement of Third Party Claims. The Indemnifying If an Indemnifier elects to assume the defense of any Third Party Claim as provided in Section 9.6, the Indemnifier shall not be liable for any Third Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party shall be taken into account in the computation of the Cumulative Threshold Amount). In such connection, in the event that (x) legal expenses subsequently incurred by the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of settlement of a Third Party Claim (a “Settlement Offer”), the Indemnified Party shall notify the Indemnifying Party of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide connection with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either the Indemnified Party or the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue the defense of such Third Party Claim unless the representation of the Indemnifier and the Indemnified Party by the same counsel would be inappropriate due to actual or potential differing interests between them. Notwithstanding the foregoing, if the Indemnifier fails to take reasonable steps necessary to defend diligently such Third Party Claim within a reasonable time after receiving notice from the Indemnified Party that the Indemnified Party has reasonable grounds to believe that the Indemnifier has failed to take such steps, the Indemnified Party may, at its own expenseoption, in which case elect to assume the liability defense of the Indemnifying Party shall be limited and to the lesser of: (i) the amount of Damages calculated as if compromise or settle the Third Party Claim were settled assisted by counsel of its choice and the Indemnifier shall be liable for all reasonable costs and out-of-pocket expenses paid or incurred in accordance with connection therewith. Without the proposed Settlement Offer; and (ii) the Damages actually suffered by the Indemnified Party (or, if the Purchaser is prior written consent of the Indemnified Party, the Company), taking Indemnifier shall not enter into account any compromise or settlement of any Third Party Claim which would lead to liability or create any financial or other material obligation on the final determination part of the Third Party ClaimIndemnified Party.

Settlement of Third Party Claims. The Notwithstanding any other provision of this Agreement, if the Indemnifying Party assumes the defense of any Third Party Claim pursuant to Section 8.5, (i) the Indemnified Party shall not file any papers or consent to the entry of any judgment or enter into any settlement with respect to such Third Party Claim and (ii) the Indemnifying Party shall not be liable for consent to the entry of any judgment or enter into any settlement with respect to such Third Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party shall be taken into account in the computation of the Cumulative Threshold Amount). In such connection, in the event that (x) the Indemnified Party (or which consent shall be given if the Purchaser is the Indemnified Party, the Companysettlement by its terms (1) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of settlement of a Third Party Claim (a “Settlement Offer”), the Indemnified Party shall notify the Indemnifying Party of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable obligates the Indemnifying Party to assess pay the relative merits full amount of the Settlement Offer. At the reasonable request of either liability in connection with such Third Party Claim, (2) fully and finally releases the Indemnified Party completely in connection with such Third Party Claim, and (3) does not impose any obligation or restriction on such Indemnified Party or its Affiliates). If the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or does not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue assume the defense of such Third Party Claim at its own expenseClaims or fails to diligently prosecute or withdraws from the defense of a Third Party Claim, in the Indemnifying Party will not be obligated to indemnify the Indemnified Party for any settlement entered into or any judgment consented to without the prior the Indemnifying Party’s prior written consent (which case the liability consent shall not be unreasonably withheld, delayed or conditioned). Notwithstanding any other provision of this Agreement, whether or not the Indemnifying Party shall be limited to have assumed the lesser of: (i) the amount defense of Damages calculated as a Third Party Claim, if the Indemnified Party admits any liability with respect to, or settles, compromises or discharges, such Third Party Claim were settled in accordance with without the proposed Settlement Offer; and Indemnifying Party’s prior written consent (ii) which consent shall not be unreasonably withheld, delayed or conditioned), then such admission, settlement or compromise will not be binding upon or constitute evidence against the Damages actually suffered by Indemnifying Party for purposes of determining whether the Indemnified Party (or, if has incurred Losses that are indemnifiable pursuant to this Section 8 or the Purchaser is the Indemnified Party, the Company), taking into account the final determination of the Third Party Claimamount thereof.

Settlement of Third Party Claims. The Indemnifying Party shall not be liable for In connection with any indemnification claim arising out of a claim or legal proceeding (a “Third Party Claim which Claim”) by a person or entity who is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is the Indemnified not a Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party shall be taken into account in entitled to control the computation defense of any such claim, subject to the Cumulative Threshold Amount). In such connectionproviso below, in the event that (x) with counsel reasonably acceptable to the Indemnified Party (at the Indemnifying Party’s own cost and expense, including the cost and expense of reasonable attorneys’ fees and disbursements in connection with such defense, and such Indemnifying Party shall be entitled to agree to a settlement of, or if the Purchaser is stipulation of any judgment arising from, any such Third Party Claim, with the consent of the Indemnified Party, the Company) which consent shall receive not be unreasonably withheld or delayed; provided, however, that no such consent shall be required from a Third Party or (y) the Indemnified Party if (i) the Indemnifying Party pays or if causes to be paid all Losses arising out of such settlement or judgment concurrently with the Purchaser effectiveness thereof (as well as all other Losses theretofore incurred by the Indemnified Party which then remain unpaid or unreimbursed), (ii) in the case of a settlement, the settlement is conditioned upon a complete release by the claimant of the Indemnified Party, and (iii) such settlement or judgment does not require the Company) shall propose to make to a Third Party, an offer encumbrance of settlement any asset of a Third Party Claim (a “Settlement Offer”), the Indemnified Party shall notify the Indemnifying Party of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer. At the reasonable request of either the Indemnified Party or the Indemnifying Partyimpose any restriction upon its conduct of business or otherwise adversely affect its business, the Parties will consult in good faith with respect to including, without limitation, use of any such Settlement Offer. The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement Offer. In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue the defense of such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall be limited to the lesser of: (i) the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered by the Indemnified Party (or, if the Purchaser is the Indemnified Party, the Company), taking into account the final determination of the Third Party ClaimIntellectual Property.