Common use of Third Party Claim Indemnification Procedure Clause in Contracts

Third Party Claim Indemnification Procedure. If any Third-Party Claim is made against any Indemnified Party with respect to which the Indemnified Party intends to seek indemnification hereunder for any Loss under this Article IX, the Indemnified Party shall promptly notify the Indemnifying Party of such Third-Party Claim, but in any case, not later than thirty (30) days after receipt by the Indemnified Party of notice of the Third-Party Claim; provided, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article IX, except and only to the extent that the Indemnifying Party is actually and materially prejudiced by such failure. Upon receipt of a notice of a Third-Party Claim, the Indemnifying Party will be entitled, by notice to the Indemnified Party delivered by the earlier of (a) twenty (20) business days following receipt of the applicable Claim Certificate in respect of such Third-Party Claim and (b) the fifth (5th) day preceding the date on which an appearance is required to be made before a court, arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding, to assume the defense and control of such Third-Party Claim (at the expense of such Indemnifying Party); provided, that (i) the Third-Party Claim does not seek an injunction or other non-monetary relief, (ii) the Third-Party Claim does not involve or relate to a pending or potential criminal proceeding, (iii) the amount demanded in such Third-Party Claim (or if no amount is specified, the amount that could reasonably be expected to be payable if such Third-Party Claim is resolved in favor of the claimant) does not exceed two times the remaining amount that may be payable in respect of such claim by the Indemnifying Party hereunder, taking into account applicable limitations on indemnification hereunder pursuant to the Threshold, the General Cap, the Cap or otherwise; and (iv) the Indemnifying Party conducts the defense of the Third-Party Claim actively and diligently in order to preserve its rights in this regard; and provided, further, that the Indemnifying Party shall allow the Indemnified Party a reasonable opportunity to participate in (but not control) the defense of such Third-Party Claim with its own counsel and at its own expense; provided, however, that, if, in the reasonable opinion of counsel to the Indemnified Party, there are defenses available to the Indemnified Party that are different from or in addition to those available to the Indemnifying Party, then the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of one external law firm to the Indemnified Party. If the Indemnifying Party does not assume the defense and control of any Third-Party Claim pursuant to this Section 9.6, the Indemnified Party shall then be entitled to assume and control such defense (and the fees and expenses of counsel for the Indemnified Party shall be deemed to be Losses for which the Indemnified Party may make a claim for indemnification pursuant to the terms of this Agreement), but the Indemnifying Party may nonetheless participate in the defense of such Third-Party Claim with its own counsel and at its own expense. If the Indemnifying Party is precluded from assuming the defense of a Third-Party Claim pursuant to clause (iii) above, the Indemnified Party shall not enter into any settlement with respect to such Third-Party Claim pursuant to which the portion of any settlement consideration paid by the Indemnifying Party exceeds 25% of the total amount paid or to be paid in respect of such claim, without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed). If the Indemnifying Party -42- assumes the defense and control of a Third-Party Claim, the Indemnifying Party shall be entitled to select counsel, contractors and consultants. Purchaser or Seller, as the case may be, shall reasonably cooperate with the Indemnifying Party in the defense or prosecution of any Third-Party Claim, including by furnishing books and records and personnel (on a mutually convenient basis), as reasonably relevant for any defense of such Third-Party Claim. The Indemnified Party and the Indemnifying Party shall keep each other fully and promptly informed with respect to the status of all Third-Party Claims and shall deliver to each other copies of all material written notices and documents (including court papers) received by the other that relate to any Third-Party Claims. The Parties shall use commercially reasonable efforts to avoid production of confidential information (consistent with applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges. If the Indemnifying Party has assumed the defense and control of a Third-Party Claim, it shall not be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third-Party Claim, with the prior written consent of the Indemnified Party (not to be unreasonably withheld, conditioned or delayed); provided, that no such consent of the Indemnified Party shall be required if such settlement or judgment contains a full and unconditional release of the Indemnified Party and would not result in (i) the imposition of any consent order, injunctive relief or decree that would restrict the future activity or conduct of the Indemnified Party, or any of its Affiliates, (ii) a finding or admission that would have an adverse effect on other claims made or threatened against the Indemnified Party or any of its Affiliates, (iii) any finding or admission of any violation of Law or admission of any wrongdoing by any Indemnified Party or any of its Affiliates, (iv) any monetary liability of the Indemnified Party that will not be paid or reimbursed by the Indemnifying Party, (v) any non-monetary condition or obligation being imposed on any Indemnified Party or any of its Affiliates or (vi) a material and adverse impact on the ongoing business of the Indemnified Party.

Third Party Claim Indemnification Procedure. If (a) Upon any Indemnified Party’s receipt of notice of assertion of any claim or demand by a third party against an Indemnified Party for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder (a “Third-Party Claim is made against any Indemnified Party with respect to which the Indemnified Party intends to seek indemnification hereunder for any Loss under this Article IXClaim”), the such Indemnified Party shall promptly promptly, but in no event more than twenty (20) days following such Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, but in the amount or the estimated amount of damages sought thereunder to the extent then reasonably ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any caseother remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall not later than thirty affect the rights of an Indemnified Party hereunder, except to the extent that such failure materially prejudices the Indemnifying Party’s defense of, or other rights available to the Indemnifying Party with respect to, such Third-Party Claim. The Indemnifying Party shall have twenty (3020) days (or such lesser number of days set forth in the Claim Notice as may be required by a Proceeding in the event of a litigated matter) after receipt by of the Claim Notice (the “Notice Period”) to notify the Indemnified Party of notice of that it desires to defend the Indemnified Party against such Third-Party Claim; provided, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article IXhowever, except and only to the extent that the Indemnifying Party is actually and materially prejudiced by such failure. Upon receipt of a notice of a Third-Party Claim, the Indemnifying Party will shall not be entitled, by notice entitled to the Indemnified Party delivered by the earlier of (a) twenty (20) business days following receipt assume or maintain control of the applicable Claim Certificate in respect defense of such any Third-Party Claim and (b) shall pay the fifth (5th) day preceding reasonable fees and expenses of counsel retained by the date on which an appearance is required to be made before a court, arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding, to assume the defense and control of such Third-Indemnified Party Claim (at the expense of such Indemnifying Party); provided, that if (i) the Third-Party Claim does not seek an injunction relates to or other non-monetary reliefarises in connection with any criminal proceeding, action, indictment, allegation or investigation, (ii) the Indemnifying Party has failed to defend or is failing to defend in good faith the Third-Party Claim does not involve Claim, or relate to a pending or potential criminal proceeding, (iii) the amount demanded in such Third-Indemnifying Party Claim (or if no amount is specified, and the amount Indemnified Party are both named parties to the Proceedings and the Indemnified Party shall have reasonably concluded that could reasonably be expected to be payable if such Third-Party Claim is resolved in favor representation of the claimant) does not exceed two times the remaining amount that may be payable in respect of such claim both parties by the Indemnifying Party hereunder, taking into account applicable limitations on indemnification hereunder pursuant same counsel would be inappropriate due to the Threshold, the General Cap, the Cap actual or otherwisepotential differing interests between them; and (iv) the Indemnifying Party conducts the defense of the Third-Party Claim actively and diligently in order to preserve its rights in this regard; and provided, further, that the Indemnifying Party shall allow the Indemnified Party a reasonable opportunity prior to participate in (but not control) the defense of such Third-Party Claim with its own counsel and at its own expense; provided, however, that, if, in the reasonable opinion of counsel to the Indemnified Party, there are defenses available to the Indemnified Party that are different from or in addition to those available to the Indemnifying Party, then the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of one external law firm to the Indemnified Party. If the Indemnifying Party does not assume the defense and control of any Third-Party Claim pursuant to this Section 9.6, the Indemnified Party shall then be entitled to assume and control such defense (and the fees and expenses of counsel for the Indemnified Party shall be deemed to be Losses for which the Indemnified Party may make a claim for indemnification pursuant to the terms of this Agreement), but the Indemnifying Party may nonetheless participate in the defense of such Third-Party Claim with its own counsel and at its own expense. If the Indemnifying Party is precluded from assuming the defense of a Third-Party Claim pursuant to clause (iii) above, the Indemnified Party shall not enter into any settlement with respect to such Third-Party Claim pursuant to which the portion of any settlement consideration paid by the Indemnifying Party exceeds 25% of the total amount paid or to be paid in respect of such claim, without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed). If the Indemnifying Party -42- assumes the defense and control of a Third-Party Claim, the Indemnifying Party shall be entitled to select counsel, contractors and consultants. Purchaser or Seller, as the case may be, shall reasonably cooperate with the Indemnifying Party in the defense or prosecution of any Third-Party Claim, including by furnishing books and records and personnel (on a mutually convenient basis), as reasonably relevant for any defense of such Third-Party Claim. The Indemnified Party and the Indemnifying Party shall keep each other fully and promptly informed with respect to the status of all Third-Party Claims and shall deliver to each other copies of all material written notices and documents (including court papers) received by the other that relate to any Third-Party Claims. The Parties shall use commercially reasonable efforts to avoid production of confidential information (consistent with applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges. If the Indemnifying Party has assumed the defense and control of a Third-Party Claim, it shall not be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third-Party Claim, with the prior written consent of the Indemnified Party (not to be unreasonably withheld, conditioned or delayed); provided, that no such consent of the Indemnified Party shall be required if such settlement or judgment contains a full and unconditional release of the Indemnified Party and would not result in (i) the imposition of any consent order, injunctive relief or decree that would restrict the future activity or conduct of the Indemnified Party, or any of its Affiliates, (ii) a finding or admission that would have an adverse effect on other claims made or threatened against the Indemnified Party or any of its Affiliates, (iii) any finding or admission of any violation of Law or admission of any wrongdoing by any Indemnified Party or any of its Affiliates, (iv) any monetary liability of the Indemnified Party that will not be paid or reimbursed by the Indemnifying Party, (v) any non-monetary condition or obligation being imposed on any Indemnified Party or any of its Affiliates or (vi) a material and adverse impact on the ongoing business of the Indemnified Party.53

Third Party Claim Indemnification Procedure. If any Third-Party Claim is made against any Indemnified Party with respect to which the Indemnified Party intends to seek indemnification hereunder for any Loss under this Article IX, the Indemnified An ------------------------------------------- indemnified Party shall promptly notify the Indemnifying indemnifying Party of such Third-Party Claim, but in any case, not later than thirty (30) days after receipt by the Indemnified Party of notice within a reasonable period of the Third-existence of any Indemnification Claim resulting from a claim made by a third party and shall give the indemnifying Party Claim; provided, that the failure opportunity to provide such notice shall not release defend the Indemnifying Party from any same at its own expense and with counsel of its obligations under this Article IXown selection, except and only provided that such indemnified Party shall at all times also have the right to participate fully in the extent that defense of the Indemnifying Indemnification Claim at its own expense (without any right to indemnity hereunder for said expenses). If the indemnifying Party is actually and materially prejudiced by such failure. Upon receipt of a notice of a Third-Party Claimshall, the Indemnifying Party will be entitled, by notice to the Indemnified Party delivered by the earlier of (a) within twenty (20) days after such notice, fail to acknowledge its indemnification obligation hereunder in writing or thereafter fails to defend such Indemnification Claim adequately and reasonably, and such indemnified Party is entitled to such defense, such indemnified Party shall have the right, but not the obligation, to undertake the defense of, and to compromise or settle (exercising reasonable business days following receipt judgment) such Indemnification Claim on behalf, for the account and at the sole risk and expense, of the applicable Claim Certificate in respect of such Third-indemnifying Party Claim and (b) the fifth (5th) day preceding the date on which an appearance is required to be made before a court, arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding, to assume the defense and control of such Third-Party Claim (at the expense of such Indemnifying Party); provided, that (i) the Third-Party Claim does not seek an injunction or other non-monetary relief, (ii) the Third-Party Claim does not involve or relate to a pending or potential criminal proceeding, (iii) the amount demanded in such Third-Party Claim (or if no amount is specified, the amount that could reasonably be expected to be payable if such Third-Party Claim is resolved in favor of the claimant) does not exceed two times the remaining amount that may be payable in respect of such claim by the Indemnifying Party hereunder, taking into account applicable limitations on indemnification hereunder pursuant to the Threshold, the General Cap, the Cap or otherwise; and (iv) the Indemnifying Party conducts the defense of the Third-Party Claim actively and diligently in order to preserve its rights in this regard; and provided, further, that the Indemnifying Party shall allow the Indemnified Party a reasonable opportunity to participate in (but not control) the defense of such Third-Party Claim with its own counsel and at its own expense; provided, however, that, if, in the reasonable opinion of counsel to the Indemnified Party, there are defenses available to the Indemnified Party that are different from no such compromise or in addition to those available to the Indemnifying Party, then the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of one external law firm to the Indemnified Party. If the Indemnifying Party does not assume the defense and control of any Third-Party Claim pursuant to this Section 9.6, the Indemnified Party shall then be entitled to assume and control such defense (and the fees and expenses of counsel for the Indemnified Party settlement shall be deemed to be Losses for which the Indemnified Party may make a claim for indemnification pursuant to the terms of this Agreement), but the Indemnifying Party may nonetheless participate in the defense of such Third-Party Claim with its own counsel and at its own expense. If the Indemnifying Party is precluded from assuming the defense of a Third-Party Claim pursuant to clause (iii) above, the Indemnified Party shall not enter into any settlement with respect to such Third-Party Claim pursuant to which the portion of any settlement consideration paid by the Indemnifying Party exceeds 25% of the total amount paid or to be paid in respect of such claim, made without the prior written consent of the Indemnifying Party (indemnifying Party, which consent shall not be unreasonably withheld, conditioned withheld or delayed). If the Indemnifying Party -42- assumes the defense and control of a Third-Party Claim, the Indemnifying Party shall be entitled to select counsel, contractors and consultants. Purchaser or Seller, as the case may be, shall reasonably cooperate with the Indemnifying Party in the defense or prosecution of any Third-Party Claim, including by furnishing books and records and personnel (on a mutually convenient basis), as reasonably relevant for any defense of such Third-Party Claim. The Indemnified Party and the Indemnifying Party shall keep each other fully and promptly informed with respect to the status of all Third-Party Claims and shall deliver to each other copies of all material written notices and documents (including court papers) received by the other that relate to any Third-Party Claims. The Parties shall use commercially reasonable efforts to avoid production of confidential information (consistent with applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges. If the Indemnifying Party has assumed the defense and control of a Third-Party Claim, it shall not be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third-Party Claim, with the prior written consent of the Indemnified Party (not to be unreasonably withheld, conditioned or delayed); provided, that no such consent of the Indemnified Party shall be required if such settlement or judgment contains a full and unconditional release of the Indemnified Party and would not result in (i) the imposition of any consent order, injunctive relief or decree that would restrict the future activity or conduct of the Indemnified Party, or any of its Affiliates, (ii) a finding or admission that would have an adverse effect on other claims made or threatened against the Indemnified Party or any of its Affiliates, (iii) any finding or admission of any violation of Law or admission of any wrongdoing by any Indemnified Party or any of its Affiliates, (iv) any monetary liability of the Indemnified Party that will not be paid or reimbursed by the Indemnifying Party, (v) any non-monetary condition or obligation being imposed on any Indemnified Party or any of its Affiliates or (vi) a material and adverse impact on the ongoing business of the Indemnified Party.

Third Party Claim Indemnification Procedure. If (a) Upon any Indemnified Party’s receipt of notice of assertion of any claim or demand by a third party against an Indemnified Party for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder (a “Third-Party Claim is made against any Indemnified Party with respect to which the Indemnified Party intends to seek indemnification hereunder for any Loss under this Article IXClaim”), the such Indemnified Party shall promptly promptly, but in no event more than twenty (20) days following such Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, but in the amount or the estimated amount of damages sought thereunder to the extent then reasonably ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any caseother remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall not later than thirty affect the rights of an Indemnified Party hereunder, except to the extent that such failure materially prejudices the Indemnifying Party’s defense of, or other rights available to the Indemnifying Party with respect to, such Third-Party Claim. The Indemnifying Party shall have twenty (3020) days (or such lesser number of days set forth in the Claim Notice as may be required by a Proceeding in the event of a litigated matter) after receipt by of the Claim Notice (the “Notice Period”) to notify the Indemnified Party of notice of that it desires to defend the Indemnified Party against such Third-Party Claim; provided, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article IXhowever, except and only to the extent that the Indemnifying Party is actually and materially prejudiced by such failure. Upon receipt of a notice of a Third-Party Claim, the Indemnifying Party will shall not be entitled, by notice entitled to the Indemnified Party delivered by the earlier of (a) twenty (20) business days following receipt assume or maintain control of the applicable Claim Certificate in respect defense of such any Third-Party Claim and (b) shall pay the fifth (5th) day preceding reasonable fees and expenses of counsel retained by the date on which an appearance is required to be made before a court, arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding, to assume the defense and control of such Third-Indemnified Party Claim (at the expense of such Indemnifying Party); provided, that if (i) the Third-Party Claim does not seek an injunction relates to or other non-monetary reliefarises in connection with any criminal proceeding, action, indictment, allegation or investigation, (ii) the Indemnifying Party has failed to defend or is failing to defend in good faith the Third-Party Claim does not involve Claim, or relate to a pending or potential criminal proceeding, (iii) the amount demanded in such Third-Indemnifying Party Claim (or if no amount is specified, and the amount Indemnified Party are both named parties to the Proceedings and the Indemnified Party shall have reasonably concluded that could reasonably be expected to be payable if such Third-Party Claim is resolved in favor representation of the claimant) does not exceed two times the remaining amount that may be payable in respect of such claim both parties by the Indemnifying Party hereunder, taking into account applicable limitations on indemnification hereunder pursuant same counsel would be inappropriate due to the Threshold, the General Cap, the Cap actual or otherwisepotential differing interests between them; and (iv) the Indemnifying Party conducts the defense of the Third-Party Claim actively and diligently in order to preserve its rights in this regard; and provided, further, that the Indemnifying Party shall allow the Indemnified Party a reasonable opportunity prior to participate in (but not control) the defense assuming control of such Third-Party Claim with its own counsel and at its own expense; provided, however, that, if, in the reasonable opinion of counsel to the Indemnified Party, there are defenses available to the Indemnified Party that are different from or in addition to those available to the Indemnifying Party, then the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of one external law firm to the Indemnified Party. If the Indemnifying Party does not assume the defense and control of any Third-Party Claim pursuant to this Section 9.6, the Indemnified Party shall then be entitled to assume and control such defense (and the fees and expenses of counsel for the Indemnified Party shall be deemed to be Losses for which the Indemnified Party may make a claim for indemnification pursuant to the terms of this Agreement), but the Indemnifying Party may nonetheless participate in the defense of such Third-Party Claim with its own counsel and at its own expense. If the Indemnifying Party is precluded from assuming the defense of a Third-Party Claim pursuant to clause (iii) above, the Indemnified Party shall not enter into any settlement with respect to such Third-Party Claim pursuant to which the portion of any settlement consideration paid by the Indemnifying Party exceeds 25% of the total amount paid or to be paid in respect of such claim, without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed). If the Indemnifying Party -42- assumes the defense and control of a Third-Party Claimdefense, the Indemnifying Party shall be entitled to select counsel, contractors and consultants. Purchaser or Seller, as the case may be, shall reasonably cooperate with the Indemnifying Party in the defense or prosecution of any Third-Party Claim, including by furnishing books and records and personnel (on a mutually convenient basis), as reasonably relevant must acknowledge that it would have an indemnity obligation for any defense of Losses resulting from such Third-Party Claim. The Indemnified Party and the Indemnifying Party shall keep each other fully and promptly informed with respect to the status of all Third-Party Claims and shall deliver to each other copies of all material written notices and documents (including court papers) received by the other that relate to any Third-Party Claims. The Parties shall use commercially reasonable efforts to avoid production of confidential information (consistent with applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges. If the Indemnifying Party has assumed the defense and control of a Third-Party Claim, it shall not be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third-Party Claim, with the prior written consent of the Indemnified Party (not to be unreasonably withheld, conditioned or delayed); provided, that no such consent of the Indemnified Party shall be required if such settlement or judgment contains a full and unconditional release of the Indemnified Party and would not result in (i) the imposition of any consent order, injunctive relief or decree that would restrict the future activity or conduct of the Indemnified Party, or any of its Affiliates, (ii) a finding or admission that would have an adverse effect on other claims made or threatened against the Indemnified Party or any of its Affiliates, (iii) any finding or admission of any violation of Law or admission of any wrongdoing by any Indemnified Party or any of its Affiliates, (iv) any monetary liability of the Indemnified Party that will not be paid or reimbursed by the Indemnifying Party, (v) any non-monetary condition or obligation being imposed on any Indemnified Party or any of its Affiliates or (vi) a material and adverse impact on the ongoing business of the Indemnified Party.

Third Party Claim Indemnification Procedure. If any Third-Party Claim is made against any Indemnified Party with respect to which the Indemnified Party intends to seek indemnification hereunder for any Loss under this Article IX, the Indemnified Party An indemnified person shall promptly notify the Indemnifying Party of such Third-Party Claim, but in any case, not later than thirty (30) days after receipt by the Indemnified Party of notice indemnifying party of the Third-Party Claim; provided, that existence of any Claim resulting from a claim made by a third party and shall give the failure indemnifying party the opportunity to provide such notice shall not release defend the Indemnifying Party from any same at its own expense and with counsel of its obligations under this Article IXown selection, except and only provided that such indemnified person shall at all times also have the right to the extent that the Indemnifying Party is actually and materially prejudiced by such failure. Upon receipt of a notice of a Third-Party Claim, the Indemnifying Party will be entitled, by notice to the Indemnified Party delivered by the earlier of (a) twenty (20) business days following receipt of the applicable Claim Certificate participate fully in respect of such Third-Party Claim and (b) the fifth (5th) day preceding the date on which an appearance is required to be made before a court, arbitrator or other tribunal or an answer or similar pleading is required to be filed in a litigation or other proceeding, to assume the defense and control of such Third-Party Claim (at the expense of such Indemnifying Party); provided, that (i) the Third-Party Claim does not seek an injunction or other non-monetary relief, (ii) the Third-Party Claim does not involve or relate to a pending or potential criminal proceeding, (iii) the amount demanded in such Third-Party Claim (or if no amount is specified, the amount that could reasonably be expected to be payable if such Third-Party Claim is resolved in favor of the claimant) does not exceed two times the remaining amount that may be payable in respect of such claim by the Indemnifying Party hereunder, taking into account applicable limitations on indemnification hereunder pursuant to the Threshold, the General Cap, the Cap or otherwise; and (iv) the Indemnifying Party conducts the defense of the Third-Party Claim actively and diligently in order to preserve its rights in this regard; and providedat his, further, that the Indemnifying Party shall allow the Indemnified Party a reasonable opportunity to participate in (but not control) the defense of such Third-Party Claim with its own counsel and at its own expense; provided, however, that, if, in the reasonable opinion of counsel to the Indemnified Party, there are defenses available to the Indemnified Party that are different from her or in addition to those available to the Indemnifying Party, then the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of one external law firm to the Indemnified Party. If the Indemnifying Party does not assume the defense and control of any Third-Party Claim pursuant to this Section 9.6, the Indemnified Party shall then be entitled to assume and control such defense (and the fees and expenses of counsel for the Indemnified Party shall be deemed to be Losses for which the Indemnified Party may make a claim for indemnification pursuant to the terms of this Agreement), but the Indemnifying Party may nonetheless participate in the defense of such Third-Party Claim with its own counsel and at its own expense. If the Indemnifying Party indemnifying party shall, within fifteen (15) days after such notice, fail to acknowledge its indemnification obligation hereunder in writing or thereafter fail to defend such Claim adequately and reasonably, and such indemnified person is precluded from assuming entitled to such defense, such indemnified person shall have the right, but not the obligation, to undertake the defense of a Third-Party Claim pursuant to clause (iii) above, the Indemnified Party shall not enter into any settlement with respect to such Third-Party Claim pursuant to which the portion of any settlement consideration paid by the Indemnifying Party exceeds 25% of the total amount paid or to be paid in respect of such claim, without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed). If the Indemnifying Party -42- assumes the defense and control of a Third-Party Claim, the Indemnifying Party shall be entitled to select counsel, contractors and consultants. Purchaser or Seller, as the case may be, shall reasonably cooperate with the Indemnifying Party in the defense or prosecution of any Third-Party Claim, including by furnishing books and records and personnel (on a mutually convenient basis), as reasonably relevant for any defense of such Third-Party Claim. The Indemnified Party and the Indemnifying Party shall keep each other fully and promptly informed with respect to the status of all Third-Party Claims and shall deliver to each other copies of all material written notices and documents (including court papers) received by the other that relate to any Third-Party Claims. The Parties shall use commercially reasonable efforts to avoid production of confidential information (consistent with applicable Law)of, and to cause all communications among employeescompromise or settle (exercising reasonable business judgment) such Claim on behalf, counsel for the account, and others representing the sole risk and expense, of the indemnifying party. The omission of any indemnifying party to a Third-Party Claim to be made so give notice of the existence of any third party claim as to preserve any applicable attorney-client or work-product privileges. If the Indemnifying Party has assumed the defense and control of a Third-Party Claim, it provided herein shall not be authorized relieve the indemnifying party of its indemnification obligations under this Article X except to consent the extent that such omission results in a failure of actual notice to the indemnifying party and such indemnifying party is materially damaged as a settlement of, or the entry result of any judgment arising from, any Third-Party Claim, such failure to give notice. Except with the prior written consent of the Indemnified Party (not to be unreasonably withheldParty, conditioned or delayed); providedno indemnifying party, that no such consent of in the Indemnified Party shall be required if such settlement or judgment contains a full and unconditional release of the Indemnified Party and would not result in (i) the imposition defense of any Claim, shall consent order, to entry of any judgment or enter into any settlement that provides for injunctive or other nonmonetary relief or decree that would restrict the future activity or conduct of the Indemnified Party, or any of its Affiliates, (ii) a finding or admission that would have an adverse effect on other claims made or threatened against affecting the Indemnified Party or any of its Affiliates, (iii) any finding does not include as an unconditional term thereof the giving by each claimant or admission of any violation of Law or admission of any wrongdoing by any plaintiff to such Indemnified Party of a release from all liability with respect to such Claim or any of its Affiliates, (iv) any monetary liability of the Indemnified Party that will not be paid or reimbursed by the Indemnifying Party, (v) any non-monetary condition or obligation being imposed on any Indemnified Party or any of its Affiliates or (vi) a material and adverse impact on the ongoing business of the Indemnified Partylitigation.