Common use of Notice of Third Party Claims Clause in Contracts

Notice of Third Party Claims. If any action, suit or proceeding shall be commenced against, or any claim or demand shall be asserted against Buyer or Seller, in respect of which a party (Buyer or Seller) proposes to seek indemnification under this Article VII, the party seeking indemnification (the "Indemnitee") shall give prompt notice thereof to the other party (the "Indemnitor"), and shall permit the Indemnitor, at its sole cost and expense, to assume the defense of any such claim or any litigation resulting therefrom; provided, however, that the Indemnitee shall have the option, at its own expense, to participate in the defense thereof; and provided further, that the failure of any Indemnitee to give notice as provided herein shall not relieve the Indemnitor of its obligations under this Article VII except to the extent that the Indemnitor is actually prejudiced by such failure to give notice. Failure by the Indemnitor to notify the Indemnitee of its election to defend any such action within fifteen (15) days after notice thereof shall be deemed a waiver by the Indemnitor of its right to defend such action. In the defense of such claim or any litigation resulting therefrom, the Indemnitor shall not, without the written consent of the Indemnitee: (a) consent to the entry of any judgment, or (b) enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability in respect to such claim or litigation. If such defense is unsuccessful or abandoned by the Indemnitor, then, upon the Indemnitor's failure to pay an amount sufficient to discharge any such claim or judgment, the Indemnitee may pay and settle the same and the indemnitor's liability shall be conclusively established by any such payment. If the Indemnitor fails to assume the defense of any such claim or litigation resulting therefrom, the Indemnitee may defend against and settle such claim or litigation in such manner as it may seem appropriate and the Indemnitor shall promptly reimburse the Indemnitee for the amount of all expenses, legal or otherwise, incurred by the Indemnitee in connection with the defense against or settlement of such claim or litigation. If no settlement is made, the Indemnitor shall promptly reimburse the Indemnitee for the amount of any judgment rendered with respect to such claim or such litigation and of all expenses, legal or otherwise, incurred by the Indemnitee in the defense thereof.

Notice of Third Party Claims. If any action, suit or proceeding shall be commenced against, or any claim or demand shall be asserted against Buyer or Seller, in respect of which a party (Buyer or Seller) proposes to seek indemnification under this Article VIIVI, the party seeking indemnification (the "Indemnitee") shall give prompt notice thereof to the other party (the "Indemnitor"), and shall permit the Indemnitor, at its sole cost and expense, to assume the defense of any such claim or any litigation resulting therefrom; provided, however, that the Indemnitee shall have the option, at its own expense, to participate in the defense thereof; and provided further, that the failure of any Indemnitee to give notice as provided herein shall not relieve the Indemnitor of its obligations under this Article VII VI except to the extent that the Indemnitor is actually prejudiced by such failure to give notice. Failure by the Indemnitor to notify the Indemnitee of its election to defend any such action within fifteen (15) days after notice thereof shall be deemed a waiver by the Indemnitor of its right to defend such action. In the defense of such claim or any litigation resulting therefrom, the Indemnitor shall not, without the written consent of the Indemnitee: (a) consent to the entry of any judgment, or (b) enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability in respect to such claim or litigation. If such defense is unsuccessful or abandoned by the Indemnitor, then, upon the Indemnitor's failure to pay an amount sufficient to discharge any such claim or judgment, the Indemnitee may pay and settle the same and the indemnitorIndemnitor's liability shall be conclusively established by any such payment. If the Indemnitor fails to assume the defense of any such claim or litigation resulting therefrom, the Indemnitee may defend against and settle such claim or litigation in such manner as it may seem appropriate and the Indemnitor shall promptly reimburse the Indemnitee for the amount of all expenses, legal or otherwise, incurred by the Indemnitee in connection with the defense against or settlement of such claim or litigation. If no settlement is made, the Indemnitor shall promptly reimburse the Indemnitee for the amount of any judgment rendered with respect to such claim or such litigation and of all expenses, legal or otherwise, incurred by the Indemnitee in the defense thereof.

Notice of Third Party Claims. If any action, suit or proceeding shall be commenced againstclaim is asserted by any person not a party, or an affiliate or a Representative of a party, to this Agreement against an indemnified party under this Agreement (any such claim or demand shall be asserted against Buyer or Seller, in respect of which being a "Third Party Claim") and such indemnified party (Buyer or Seller) proposes intends to seek indemnification hereunder from a party to this Agreement, then, such indemnified party shall give notice of the Third Party Claim to the indemnifying party as soon as practicable after the indemnified party has reason to believe that the indemnifying party will have an indemnification obligation with respect to such Third Party Claim, accompanied by copies of all papers that have been served on the indemnified party with respect to such Third Party Claim. Such notice shall describe in reasonable detail the nature of the Third Party Claim, an estimate of the amount of damages attributable to the Third Party Claim (if reasonably attainable) and the basis of the indemnified party's request for indemnification under this Article VII, Agreement. The failure of the indemnified party seeking indemnification (to so notify the "Indemnitee") indemnifying party of the Third Party Claim shall give prompt notice thereof not relieve the indemnifying party from any duty to indemnify hereunder unless and only to the other extent that the indemnifying party (demonstrates that the "Indemnitor"), and shall permit failure of the Indemnitor, at indemnified party to promptly notify it of such Third Party Claim prejudiced its sole cost and expense, ability to assume the defense of any defend such claim or any litigation resulting therefromThird Party Claim; provided, however, that the Indemnitee shall have the option, at its own expense, to participate in the defense thereof; and provided further, that the failure of any Indemnitee the indemnified party to give notice as provided herein notify the indemnifying party shall not relieve the Indemnitor of its obligations indemnifying party from any liability which it may have to the indemnified party otherwise than under this Article VII except Agreement. Thereafter, the indemnified party shall deliver to the extent indemnifying party, within five business days after the indemnified party's receipt thereof, copies of all written notices and documents (including court papers but excluding any materials that the Indemnitor is actually prejudiced by such failure are subject to give notice. Failure any applicable privilege or that constitute attorney work product) received by the Indemnitor to notify the Indemnitee of its election to defend any such action within fifteen (15) days after notice thereof shall be deemed a waiver by the Indemnitor of its right to defend such action. In the defense of such claim or any litigation resulting therefrom, the Indemnitor shall not, without the written consent of the Indemnitee: (a) consent indemnified party relating to the entry of any judgment, or (b) enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability in respect to such claim or litigation. If such defense is unsuccessful or abandoned by the Indemnitor, then, upon the Indemnitor's failure to pay an amount sufficient to discharge any such claim or judgment, the Indemnitee may pay and settle the same and the indemnitor's liability shall be conclusively established by any such payment. If the Indemnitor fails to assume the defense of any such claim or litigation resulting therefrom, the Indemnitee may defend against and settle such claim or litigation in such manner as it may seem appropriate and the Indemnitor shall promptly reimburse the Indemnitee for the amount of all expenses, legal or otherwise, incurred by the Indemnitee in connection with the defense against or settlement of such claim or litigation. If no settlement is made, the Indemnitor shall promptly reimburse the Indemnitee for the amount of any judgment rendered with respect to such claim or such litigation and of all expenses, legal or otherwise, incurred by the Indemnitee in the defense thereofThird Party Claim.

Notice of Third Party Claims. If any action, suit or proceeding shall be commenced against, or any claim or demand shall be asserted against Buyer or Seller, in respect of which a The party (Buyer or Seller) proposes to seek seeking indemnification under this Article VII, the party seeking indemnification VI (the "Indemnitee") shall give prompt notice thereof to shall, within thirty (30) days of receipt, provide the other party from whom indemnification is sought (the "Indemnitor")) with notice of all third party actions, suits, proceedings, claims, demands or assessments which may be subject to the indemnification provisions of this Article VI (collectively, "Third Party Claims") brought at any time following the Closing Date, and shall permit the Indemnitor, at its sole cost and expense, otherwise make available all relevant information material to assume the defense of any Third Party Claims. The Indemnitor shall have the right to defend any such Third Party Claim at its sole expense. Where such Third Party Claim affects the interests of the Indemnitee, the Indemnitee may elect to participate in (but not control) the defense of such claim or any litigation resulting therefromat its sole expense; provided, howeverthat the Indemnitor shall pay the Indemnitee's expenses (including reasonable attorneys' fees and expenses) if the Indemnitor's counsel would be inappropriate due to a conflict of interest between the Indemnitee and any party represented by such counsel with respect to such claim. No claim shall be settled or compromised without the consent of the Indemnitee (which consent shall not be unreasonably withheld, it being understood that it shall be reasonable for the Indemnitee to decline to consent to any settlement or compromise that does not include as a condition thereof a release of all claims against such Indemnitee) unless the Indemnitee shall have failed, after the optionlapse of a reasonable time, at its own expensebut in no event more than thirty (30) days, after notice to participate it of such proposed settlement to notify the Indemnitor or the Indemnitee's objection thereto. The Indemnitee's failure to give timely notice or to provide copies of documents or to furnish relevant data in the defense thereof; and provided further, that the failure connection with any Third Party Claim shall not constitute a basis for reduction of any Indemnitee to give notice as provided herein shall not relieve claim for indemnification by the Indemnitor of its obligations under this Article VII Indemnitee, except to the extent that the Indemnitor is actually prejudiced by such failure shall result in any material prejudice to give notice. Failure by the Indemnitor to notify the Indemnitee of its election to defend any such action within fifteen (15) days after notice thereof shall be deemed a waiver by the Indemnitor of its right Indemnitor's ability to defend such actionclaim. In Further, where the Indemnitor has undertaken the defense of such claim or any litigation resulting therefroma Third Party Claim, the Indemnitee, recognizing its community of interest with the Indemnitor shall not, without in the written consent resolution of the Indemnitee: (a) consent claim, shall provide such reasonable support to the entry of any judgment, or (b) enter into any settlement which does not include Indemnitor as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability in respect to such claim or litigation. If such defense is unsuccessful or abandoned by the Indemnitor, then, upon the Indemnitor's failure to pay an amount sufficient to discharge any such claim or judgment, the Indemnitee may pay and settle the same and the indemnitor's liability shall be conclusively established by any such paymentreasonably requested, including affidavits, documents and testimony. If the Indemnitor fails to assume the defense The cost of any such claim or litigation resulting therefrom, the Indemnitee may defend against and settle such claim or litigation in such manner as it may seem appropriate and the Indemnitor shall promptly reimburse the Indemnitee for the amount reasonable out of all expenses, legal or otherwise, pocket expenses incurred by the Indemnitee in connection with providing such support to the defense against or settlement of such claim or litigationIndemnitor shall be reimbursed to the Indemnitee by the Indemnitor. If no settlement is madethe Indemnitor declines to defend any Third Party Claim, the Indemnitor shall promptly reimburse pay all of the Indemnitee for the amount of any judgment rendered with respect Indemnitee's expenses (including, without limitation, reasonable attorneys' fees and expenses) relating to such claim or such litigation and of all expenses, legal or otherwise, incurred by the Indemnitee in the defense thereofThird Party Claim.

Notice of Third Party Claims. If any action, suit or proceeding shall be commenced againstclaim is asserted by any person not a party, or an affiliate or a Representative of a party, to this Agreement against an indemnified party under this Agreement (any such claim or demand shall be asserted against Buyer or Seller, in respect of which being a “Third Party Claim”) and such indemnified party (Buyer or Seller) proposes intends to seek indemnification hereunder from a party to this Agreement, then, such indemnified party shall give notice of the Third Party Claim to the indemnifying party as soon as practicable after the indemnified party has reason to believe that the indemnifying party will have an indemnification obligation with respect to such Third Party Claim, accompanied by copies of all papers that have been served on the indemnified party with respect to such Third Party Claim. Such notice shall describe in reasonable detail the nature of the Third Party Claim, an estimate of the amount of damages attributable to the Third Party Claim (if reasonably attainable) and the basis of the indemnified party’s request for indemnification under this Article VII, Agreement. The failure of the indemnified party seeking indemnification (to so notify the "Indemnitee") indemnifying party of the Third Party Claim shall give prompt notice thereof not relieve the indemnifying party from any duty to indemnify hereunder unless and only to the other extent that the indemnifying party (demonstrates that the "Indemnitor"), and shall permit failure of the Indemnitor, at indemnified party to promptly notify it of such Third Party Claim prejudiced its sole cost and expense, ability to assume the defense of any defend such claim or any litigation resulting therefromThird Party Claim; provided, however, that the Indemnitee shall have the option, at its own expense, to participate in the defense thereof; and provided further, that the failure of any Indemnitee the indemnified party to give notice as provided herein notify the indemnifying party shall not relieve the Indemnitor of its obligations indemnifying party from any liability which it may have to the indemnified party otherwise than under this Article VII except Agreement. Thereafter, the indemnified party shall deliver to the extent indemnifying party, within five business days after the indemnified party’s receipt thereof, copies of all written notices and documents (including court papers but excluding any materials that the Indemnitor is actually prejudiced by such failure are subject to give notice. Failure any applicable privilege or that constitute attorney work product) received by the Indemnitor to notify the Indemnitee of its election to defend any such action within fifteen (15) days after notice thereof shall be deemed a waiver by the Indemnitor of its right to defend such action. In the defense of such claim or any litigation resulting therefrom, the Indemnitor shall not, without the written consent of the Indemnitee: (a) consent indemnified party relating to the entry of any judgment, or (b) enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability in respect to such claim or litigation. If such defense is unsuccessful or abandoned by the Indemnitor, then, upon the Indemnitor's failure to pay an amount sufficient to discharge any such claim or judgment, the Indemnitee may pay and settle the same and the indemnitor's liability shall be conclusively established by any such payment. If the Indemnitor fails to assume the defense of any such claim or litigation resulting therefrom, the Indemnitee may defend against and settle such claim or litigation in such manner as it may seem appropriate and the Indemnitor shall promptly reimburse the Indemnitee for the amount of all expenses, legal or otherwise, incurred by the Indemnitee in connection with the defense against or settlement of such claim or litigation. If no settlement is made, the Indemnitor shall promptly reimburse the Indemnitee for the amount of any judgment rendered with respect to such claim or such litigation and of all expenses, legal or otherwise, incurred by the Indemnitee in the defense thereofThird Party Claim.

Notice of Third Party Claims. If any action, suit or proceeding shall be commenced against, or any claim or demand shall be asserted against Buyer Buyer, Seller, or SellerCUCC, in respect of which a party (Buyer Buyer, Seller, or SellerCUCC) proposes to seek indemnification under this Article VIIVI, the party seeking indemnification (the "Indemnitee") shall give prompt notice thereof to the other party (the "Indemnitor"), and shall permit the Indemnitor, at its sole cost and expense, to assume the defense of any such claim or any litigation resulting therefrom; provided, however, that the Indemnitee shall have the option, at its own expense, to participate in the defense thereof; and provided further, that the failure of any Indemnitee to give notice as provided herein shall not relieve the Indemnitor of its obligations under this Article VII VI except to the extent that the Indemnitor is actually prejudiced by such failure to give notice. Failure by the Indemnitor to notify the Indemnitee of its election to defend any such action within fifteen (15) days after notice thereof shall be deemed a waiver by the Indemnitor of its right to defend such action. In the defense of such claim or any litigation resulting therefrom, the Indemnitor shall not, without the written consent of the Indemnitee: (a) consent to the entry of any judgment, or (b) enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability in respect to such claim or litigation. If such defense is unsuccessful or abandoned by the Indemnitor, then, upon the Indemnitor's failure to pay an amount sufficient to discharge any such claim or judgment, the Indemnitee may pay and settle the same and the indemnitorIndemnitor's liability shall be conclusively established by any such payment. If the Indemnitor fails to assume the defense of any such claim or litigation resulting therefrom, the Indemnitee may defend against and settle such claim or litigation in such manner as it may seem appropriate and the Indemnitor shall promptly reimburse the Indemnitee for the amount of all expenses, legal or otherwise, incurred by the Indemnitee in connection with the defense against or settlement of such claim or litigation. If no settlement is made, the Indemnitor shall promptly reimburse the Indemnitee for the amount of any judgment rendered with respect to such claim or such litigation and of all expenses, legal or otherwise, incurred by the Indemnitee in the defense thereof.

Notice of Third Party Claims. If any action, suit or proceeding shall third party asserts a Claim (a “Third Party Claim”) against an Indemnified Party that could reasonably be commenced against, or any claim or demand shall be asserted against Buyer or Seller, in respect expected to give rise to a right on the part of which a party (Buyer or Seller) proposes the Indemnified Party to seek indemnification under this Article VIIIX, the party seeking indemnification (the "Indemnitee") Indemnified Party shall give prompt notice thereof of such Third Party Claim (a “Claim Notice”) to the other party Indemnifying Party as soon as practicable (but in no event later than ten Business Days after receiving notice of such Third Party Claim or otherwise acquiring actual knowledge of the "Indemnitor"assertion thereof), and the Indemnifying Party shall permit have the Indemnitor, at its sole cost and expense, right to assume the defense of any such claim or any litigation resulting therefromThird Party Claim with counsel compensated by and chosen by the Indemnifying Party, subject to the Indemnified Party’s reasonable prior approval of such counsel; provided, however, that the Indemnitee shall have failure to so notify the option, at its own expense, to participate in the defense thereof; and provided further, that the failure of any Indemnitee to give notice as provided herein shall Indemnifying Party will not relieve the Indemnitor of its obligations under this Article VII Indemnifying Party from any liability that the Indemnifying Party may have hereunder with respect to such Third Party Claim, except to the extent that the Indemnitor Indemnifying Party is actually prejudiced by as a result of such failure, including where the failure to give notice. Failure by the Indemnitor to so notify the Indemnitee Indemnifying Party results in Losses to the Indemnifying Party or the forfeiture of its election to defend any such action within fifteen (15) days after notice thereof shall substantive rights or defenses that would otherwise be deemed a waiver by the Indemnitor of its right to defend such action. In available in the defense of such claim or any litigation resulting therefromThird Party Claim; and provided further, however, the Indemnitor shall not, without the written consent Indemnifying Party may not assume control of the Indemnitee: (a) defense of a Third Party Claim involving criminal liability or in which equitable relief is sought against the Indemnified Party or if such Third Party Claim involves a significant customer of the Business, but in such event the Indemnified Party shall not consent to the entry of any judgment, judgment or (b) enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability in respect to such claim or litigation. If such defense is unsuccessful or abandoned by the Indemnitor, then, upon the Indemnitor's failure to pay an amount sufficient to discharge any such claim or judgment, the Indemnitee may pay and settle the same and the indemnitor's liability shall be conclusively established by any such payment. If the Indemnitor fails to assume the defense of any such claim or litigation resulting therefrom, the Indemnitee may defend against and settle such claim or litigation in such manner as it may seem appropriate and the Indemnitor shall promptly reimburse the Indemnitee for the amount of all expenses, legal or otherwise, incurred by the Indemnitee in connection with the defense against or settlement of such claim or litigation. If no settlement is made, the Indemnitor shall promptly reimburse the Indemnitee for the amount of any judgment rendered with respect to such claim Third Party Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or such litigation and delayed. Any Claim Notice shall describe in reasonable detail the nature of the Loss, include a copy of all expensespapers served with respect to an Action (if any) and state the basis of such request for indemnification. In the event the provisions of Section 5.4 conflict with the provisions of this Section 9.3, legal or otherwise, incurred by the Indemnitee in the defense thereofprovisions of Section 5.4 shall govern.

Notice of Third Party Claims. If any action, suit or proceeding shall be commenced against, or (a) In the event any claim or demand shall be for which any Seller Indemnified Party or Purchaser Indemnified Party (the “Indemnified Party”) may have liability is asserted against Buyer or Sellersought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), such Indemnified Party shall promptly notify the Party responsible for providing indemnification therefor under this Agreement (the “Indemnifying Party”) in writing describing such Third-Party Claim, the basis for indemnification hereunder, the amount or estimated amount of such Loss, if known or reasonably capable of estimation, and the method of computation of such amount or estimated amount, all with reasonable particularity and containing a reference to the provisions of this Agreement in respect of which such Loss shall have occurred. If any action at law or suit in equity is instituted by or against a third party (Buyer or Seller) proposes with respect to which the Indemnified Party intends to seek indemnification indemnity under this Article VIIVIII, the party seeking indemnification Indemnified Party shall promptly notify the Indemnifying Party of such action or suit. A failure by the Indemnified Party to give notice and to tender the conduct or defense of the action or suit in a timely manner pursuant to this Section 8.3 shall not limit the obligation of the Indemnifying Party under this Article VIII, except (i) to the extent such Indemnifying Party is actually and materially prejudiced by failure to give such notice, and (ii) to the extent notice of the claim has not been given pursuant to this Section 8.3(a) prior to the expiration of the applicable period provided in Section 8.4. The Indemnifying Party shall have thirty (30) calendar days (or such lesser number of days as set forth in the notice of the claim as may be required by court proceeding in the event of a litigated matter) after receipt of the notice of the claim (the "Indemnitee"“Notice Period”) to notify the Indemnified Party that it desires to defend the Indemnified Party against such Third-Party Claim. (b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall give prompt notice thereof to have the other party (sole and absolute right after the "Indemnitor"), and shall permit the Indemnitorreceipt of notice, at its sole cost option and at its own expense, to assume the defense be represented by counsel of any its choice and to control, defend against, negotiate, settle or otherwise deal with such claim or any litigation resulting therefromThird-Party Claim; provided, however, that the Indemnitee shall have the option, Indemnified Party may participate in any such Proceeding with counsel of its choice and at its own expense, to participate in the defense thereof; and provided further, however, that the failure Indemnifying Party shall not be entitled to assume or continue control of the defense of any Indemnitee Third-Party Claim if (i) the Third-Party Claim relates to give notice as provided herein shall not relieve or arises in connection with any criminal or regulatory Proceeding, (ii) based on the Indemnitor advice of outside legal counsel to the Indemnified Party, a conflict (including the availability of different or additional defenses) exists between the Indemnified Party and the Indemnifying Party in connection with such Third-Party Claim or conduct of claim by the Indemnifying Party would compromise any legal privilege or similar doctrine with respect to the Indemnified Party or any of its obligations under Affiliates or (iii) the Third-Party Claim seeks (A) an injunction against the Indemnified Party or (B) where the Indemnified Party is a Purchaser Indemnified Party, equitable relief requiring the taking of action or the refraining from taking actions by Purchaser or (iv) with respect to a Purchaser Indemnified Party, the Purchaser Indemnified Party shall have reasonably concluded in good faith that the relevant Third-Party Claim relates to the matters that could adversely affect in any material respect the Business, including any regulatory matters relating thereto. By assuming the defense of any such Third-Party Claim, the Indemnifying Party shall thereby conclusively acknowledge for all purposes of this Agreement its obligation to indemnify the Indemnified Party in respect of such matter pursuant to and in accordance with (and, for the avoidance of doubt, subject to the limitations set forth in) this Article VII VIII, except to as otherwise provided in Section 8.3(c). (c) To the extent that the Indemnitor is actually prejudiced by such failure Indemnifying Party (i) elects not to give notice. Failure by the Indemnitor to notify the Indemnitee of its election to defend any such action within fifteen (15) days after notice thereof shall be deemed a waiver by the Indemnitor of its right to defend such action. In assume the defense of such claim matter, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise or (ii) after assuming the defense of a Third-Party Claim, fails to take reasonable steps necessary to defend diligently such Third-Party Claim within ten (10) calendar days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, then the Indemnified Party may retain counsel at the expense of the Indemnifying Party, which counsel shall be reasonably acceptable to the Indemnifying Party, and control the defense of such Proceeding; provided, however, that the Indemnifying Party shall be obligated pursuant to this Section 8.3(c) to pay for only one firm of counsel for all Indemnified Parties in addition to any litigation resulting therefromlocal counsel who may need to be retained; and it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim pursuant to this Section 8.3(c). (d) If the Indemnifying Party has the right and does elect to defend any Third-Party Claim, the Indemnitor Indemnifying Party shall conduct the defense of such Third-Party Claim with reasonable diligence and promptly inform the Indemnified Party of the status of the claim, including all settlement negotiations, and all material developments with respect to such Third-Party Claim, and the Indemnified Party shall be entitled to participate in any discussions relating to the litigation strategy implemented with respect to the defense of such Third-Party Claim. The Indemnifying Party shall not, without the prior written consent of the Indemnitee: Indemnified Party (awhich shall not be unreasonably withheld, conditioned or delayed), settle, compromise or offer to settle or compromise any pending or threatened Third-Party Claim on a basis that would not include an unconditional release of the Indemnified Party and would (i) consent to exceed the entry balance of the Indemnifying Party’s indemnity obligations hereunder (and, in the case of any judgmentPurchaser Indemnified Party, exceed the Escrow Fund), (ii) result in the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party or any of its Affiliates, (iii) result in a finding or admission of a violation of requirements of Laws or violation of the rights of any Person by the Indemnified Party or any of its Affiliates or (biv) enter into any impose ongoing obligations on the Indemnified Party following the date of such settlement which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability compromise. (e) The Parties shall cooperate reasonably in respect to such claim or litigation. If such defense is unsuccessful or abandoned by the Indemnitor, then, upon the Indemnitor's failure to pay an amount sufficient to discharge any such claim or judgment, the Indemnitee may pay and settle the same and the indemnitor's liability shall be conclusively established by any such payment. If the Indemnitor fails to assume the defense of any such claim or litigation resulting therefrom, the Indemnitee may defend against and settle such claim or litigation in such manner as it may seem appropriate and the Indemnitor shall promptly reimburse the Indemnitee for the amount of all expenses, legal or otherwise, incurred by the Indemnitee good faith in connection with the defense against defense, negotiation or settlement of any Third-Party Claim, with such claim or litigation. If no settlement is madecooperation to include (i) the retention and the provision of the Indemnifying Party records and information that are reasonably relevant to such Third-Party Claim, the Indemnitor shall promptly reimburse the Indemnitee for the amount and (ii) making employees available on a mutually convenient basis to provide additional information and explanation of any judgment rendered material provided hereunder. The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production or other disclosure of confidential information (consistent with respect applicable Laws), and to such claim 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 such litigation and of all expenses, legal work-product privileges. (f) The procedures in this Section 8.3 (other than the obligation to provide notice in Section 8.3(a)) shall not apply to direct claims by Seller Indemnified Parties or otherwise, incurred by the Indemnitee in the defense thereofPurchaser Indemnified Parties.

Notice of Third Party Claims. If any action, suit or proceeding shall be commenced against, or any claim or demand shall be asserted against Buyer or Seller, in respect of which a party (Buyer or Seller) proposes to seek indemnification under this Article VII, the party Any Indemnified --------- ---------------------------- Party seeking indemnification for any Loss or potential Loss arising from a claim asserted by a third party against the Indemnified Party (the each, a "IndemniteeThird Party Claim") shall give prompt written notice thereof to the other party (Indemnifying Party within 10 days after its receipt of a written assertion of liability from the "Indemnitor"), and shall permit the Indemnitor, at its sole cost and expense, to assume the defense of any such claim or any litigation resulting therefromthird party; provided, however, that the Indemnitee shall have the option, at its own expense, to participate in the defense thereof; and provided further, that the failure of any Indemnitee to give notice as provided herein Indemnified Party shall not relieve the Indemnitor of its obligations under be foreclosed -------- ------- from seeking indemnification pursuant to this Article VII as a result of any failure to provide timely notice of the existence of a Third Party Claim to the Indemnifying Party except and only to the extent that the Indemnitor is actually Indemnifying Party has been materially damaged or prejudiced by as a result of such failure to give noticedelay. Failure by Such notice shall summarize the Indemnitor to notify the Indemnitee of its election to defend any bases for such action within fifteen Third Party Claim. Within twenty (1520) days after receiving such notice thereof the Indemnifying Party shall be deemed a waiver by give written notice to the Indemnitor of Indemnified Party stating whether it disputes its right obligation to defend such action. In provide indemnification hereunder or the defense validity or amount of such claim or any litigation resulting therefrom, the Indemnitor shall not, without the written consent of the Indemnitee: (a) consent to the entry of any judgment, or (b) enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability in respect to Third Party Claim and whether it will defend against such claim or litigation. If such defense is unsuccessful or abandoned by the Indemnitor, then, upon the Indemnitor's failure to pay an amount sufficient to discharge any such claim or judgment, the Indemnitee may pay and settle the same and the indemnitor's liability shall be conclusively established by any such paymentThird Party Claim. If the Indemnitor Indemnifying Party fails to assume the defense of any such claim or litigation resulting therefrom, the Indemnitee may defend against and settle such claim or litigation in such manner as give notice that it may seem appropriate and the Indemnitor shall promptly reimburse the Indemnitee for the amount of all expenses, legal or otherwise, incurred by the Indemnitee in connection with the defense against or settlement of such claim or litigation. If no settlement is made, the Indemnitor shall promptly reimburse the Indemnitee for the amount of any judgment rendered disputes either its obligation hereunder with respect to such claim or the validity or amount thereof within twenty (20) days after receipt of such litigation notice, it shall be deemed to have accepted and agreed to such Third Party Claim, which shall become immediately due and payable subject to the limitations set forth herein. If the Indemnifying Party fails to give notice that it disputes its obligation to provide indemnification hereunder but disputes the validity or amount of all expensessuch Third Party Claim, legal or otherwiseit shall be deemed to have accepted responsibility for such Third Party Claim subject to the limitations set forth herein (a "Covered Third Party Claim"). If the Indemnifying Party provides notice that it disputes its obligation to provide indemnification hereunder, incurred by such Third Party Claim shall not be subject to indemnification hereunder unless the Indemnitee Indemnified Party obtains a determination in the defense thereofaccordance with Section 9.1 that such Third Party Claim is subject to indemnification hereunder, in which case it shall be treated as a Covered Third Party Claim.

Notice of Third Party Claims. If An Indemnified Party shall give the Indemnifying Party prompt notice of any actionmatter which an Indemnified Party has determined has given rise to a right of indemnification under this Agreement stating the amount of the Loss, suit or proceeding shall be commenced againstif known, or any claim or demand shall be asserted against Buyer or Sellerand method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which a party (Buyer such right of indemnification is claimed or Seller) proposes to seek indemnification arises. The obligations and liabilities under this Article VII, VIII with respect to Losses arising from claims of any third party which are subject to the party seeking indemnification provided for in this Article VIII (the "IndemniteeThird-Party Claims") shall be governed by and contingent upon the following additional terms and conditions: if an Indemnified Party shall receive notice of any Third-Party Claim, the Indemnified Party shall give the Indemnifying Party prompt notice thereof to of such Third-Party Claim (not later than within 20 days of the other party (receipt by the "Indemnitor"Indemnified Party of such notice), and shall permit the Indemnitor, at its sole cost and expense, to assume the defense of any such claim or any litigation resulting therefrom; provided, however, that the Indemnitee failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VIII except to the extent the Indemnifying Party is materially prejudiced by such failure and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to any Indemnified Party otherwise than under this Article VIII. The Indemnifying Party shall be entitled to assume and control the optiondefense of such Third-Party Claim on behalf of the Indemnified Party at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within ten days of the receipt of such notice from the Indemnified Party; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it in appropriate in the judgment of the Indemnified Party, in its reasonable discretion, for the same counsel to represent both the Indemnified Party and the Indemnifying Party, then the Indemnified Party shall be entitled to retain its own counsel, in each jurisdiction for which the Indemnified Party determines counsel is required, at the expense of the Indemnifying Party. In the event Indemnifying Party exercises the right to undertake any such defense against any such Third-Party Claim on behalf of Seller as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at its own expense, to participate all witnesses, pertinent records, materials and information in the Indemnified Party's possession or under the Indemnified Party's control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense thereof; against any such Third-Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and provided further, that the failure of any Indemnitee to give notice as provided herein shall not relieve the Indemnitor of its obligations under this Article VII except make available to the extent that Indemnified Party, at the Indemnitor Indemnifying Party's expense, all such witnesses, records, materials and information in the Indemnifying Party's possession or under Seller's control relating thereto as is actually prejudiced by such failure to give notice. Failure reasonably required by the Indemnitor to notify the Indemnitee of its election to defend any such action within fifteen (15) days after notice thereof shall Indemnified Party. No Third Party Claim may be deemed a waiver by the Indemnitor of its right to defend such action. In the defense of such claim or any litigation resulting therefrom, the Indemnitor shall not, settled without the prior written consent of both the Indemnitee: (a) consent to the entry of any judgment, or (b) enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability in respect to such claim or litigation. If such defense is unsuccessful or abandoned by the Indemnitor, then, upon the Indemnitor's failure to pay an amount sufficient to discharge any such claim or judgment, the Indemnitee may pay and settle the same Indemnified Party and the indemnitor's liability shall be conclusively established by any such payment. If the Indemnitor fails to assume the defense of any such claim or litigation resulting therefrom, the Indemnitee may defend against and settle such claim or litigation in such manner as it may seem appropriate and the Indemnitor shall promptly reimburse the Indemnitee for the amount of all expenses, legal or otherwise, incurred by the Indemnitee in connection with the defense against or settlement of such claim or litigation. If no settlement is made, the Indemnitor shall promptly reimburse the Indemnitee for the amount of any judgment rendered with respect to such claim or such litigation and of all expenses, legal or otherwise, incurred by the Indemnitee in the defense thereofIndemnifying Party.

Notice of Third Party Claims. If The parties agree that in the event that any actionclaim is made, any suit or proceeding shall be commenced againstaction is commenced, or any claim or demand shall be asserted against Buyer or Sellerknowledge is received of a state of facts which, in respect if not corrected, may give rise to a right of which a indemnification for such party hereunder (Buyer or Seller) proposes to seek indemnification under this Article VII, the party seeking indemnification (the an "IndemniteeIndemnified Party") shall give prompt notice thereof to from the other party (the "IndemnitorIndemnifying Party"), the Indemnified Party will give written notice to the Indemnifying Party as promptly as practicable after the receipt by the Indemnified Party of notice or knowledge of such claim, suit, action or state of facts. Notice to the Indemnifying Party under the preceding sentence shall be given no later than 15 days after receipt by the Indemnified Party of service of process in the event a suit or action has commenced or 30 days under all other circumstances. The failure to give prompt notice shall not relieve an Indemnifying Party of its obligation to indemnify except to the extent the Indemnifying Party is prejudiced by such failure. Such written notice shall describe such claim in reasonable detail including the sections of this Agreement that form the basis of such claim, copies of all material written evidence thereof, and the estimated amount of the Damages that have or may be sustained by the Indemnified Party. The Indemnified Party shall permit make available to the IndemnitorIndemnifying Party and its counsel and accountants at reasonable times and for reasonable periods, at its sole cost during normal business hours, all books and expenserecords of the Indemnified Party relating to any such possible claim for indemnification, and each party hereunder will render to the other such assistance as it may reasonably require of the other in order to insure prompt and adequate defense of any suit, claim or proceeding based upon a state of facts which may give rise to a right of indemnification hereunder. The Indemnifying Party shall have the right to defend, compromise and settle any third party suit, claim or proceeding in the name of the Indemnified Party to the extent that the Indemnifying Party may be liable to the Indemnified Party in connection therewith. The Indemnifying Party shall notify the Indemnified Party within 30 days of having been notified pursuant to this Section 9.05(a) if the Indemnifying Party elects to assume the defense of any such claim claim, suit or proceeding and employ counsel. The Indemnified Party shall have the right to employ its own counsel if the Indemnifying Party so elects to assume such defense, but the fees and expenses of such counsel shall be at the Indemnified Party's sole expense. If the Indemnifying Party shall undertake to compromise or defend any litigation resulting therefromsuch claim, it shall promptly notify the Indemnified Party of its intention to do so, and the Indemnified Party agrees to cooperate fully with the Indemnifying Party and its counsel in the compromise of, or defense against, any such claim; provided, however, that the Indemnitee Indemnifying Party shall not settle, compromise or discharge, or admit any liability with respect to any such claim without the prior written consent of the Indemnified Party (which consent will not be unreasonably withheld or delayed) unless the relief consists solely of money damages and includes a provision where the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto. Notwithstanding an election to assume the defense of such action or proceeding, the Indemnified Party shall have the option, at its own expense, right to employ separate counsel and to participate in the defense thereof; of such action or proceeding, and provided furtherthe Indemnifying Party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the Indemnified Party shall have determined in good faith that an actual or potential conflict of interest makes such representation by the failure same counsel or the counsel selected by the Indemnifying Party inappropriate, (ii) the Indemnifying Party shall have authorized the Indemnified Party to employ separate counsel at the Indemnifying Party's expense, or (iii) if the Indemnifying Party elects not to assume or fails to assume the defense. In any event, the Indemnified Party and Indemnifying Party and their counsel shall cooperate in the defense of any Indemnitee claim subject to give notice as provided herein shall not relieve the Indemnitor of its obligations under this Article VII except IX and keep such Persons informed of all developments relating to the extent that the Indemnitor is actually prejudiced by such failure to give notice. Failure by the Indemnitor to notify the Indemnitee of its election to defend any such action within fifteen (15) days after notice thereof shall be deemed a waiver by the Indemnitor claims, and provide copies of its right to defend such actionall relevant correspondence and documentation relating thereto. In any event, the Indemnified Party shall have the right at its own expense to participate in the defense of such claim or any litigation resulting therefrom, the Indemnitor shall not, without the written consent of the Indemnitee: (a) consent to the entry of any judgment, or (b) enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability in respect to such claim or litigation. If such defense is unsuccessful or abandoned by the Indemnitor, then, upon the Indemnitor's failure to pay an amount sufficient to discharge any such claim or judgment, the Indemnitee may pay and settle the same and the indemnitor's liability shall be conclusively established by any such payment. If the Indemnitor fails to assume the defense of any such claim or litigation resulting therefrom, the Indemnitee may defend against and settle such claim or litigation in such manner as it may seem appropriate and the Indemnitor shall promptly reimburse the Indemnitee for the amount of all expenses, legal or otherwise, incurred by the Indemnitee in connection with the defense against or settlement of such claim or litigation. If no settlement is made, the Indemnitor shall promptly reimburse the Indemnitee for the amount of any judgment rendered with respect to such claim or such litigation and of all expenses, legal or otherwise, incurred by the Indemnitee in the defense thereof.asserted 66

Notice of Third Party Claims. If any action, suit or proceeding shall be commenced against, or any claim or demand shall be asserted against Buyer or Seller, in respect of which a The party (Buyer or Seller) proposes to seek seeking indemnification under this Article VII, the party seeking indemnification VI (the "Indemnitee") shall give prompt notice thereof to shall, within thirty (30) days of receipt, provide the other party from whom indemnification is sought (the "Indemnitor")) with notice of all third party actions, suits, proceedings, claims, demands or assessments which may be subject to the indemnification provisions of this Article VI (collectively, "Third Party Claims") brought at any time following the Closing Date, and shall permit the Indemnitor, at its sole cost and expense, otherwise make available all relevant information material to assume the defense of any such claim or any litigation resulting therefrom; provided, however, that the Indemnitee Third Party Claims. The Indemnitor shall have the option, at its own expense, to participate in the defense thereof; and provided further, that the failure of any Indemnitee to give notice as provided herein shall not relieve the Indemnitor of its obligations under this Article VII except to the extent that the Indemnitor is actually prejudiced by such failure to give notice. Failure by the Indemnitor to notify the Indemnitee of its election right to defend any such action within fifteen Third Party Claim at its sole expense. Where such Third Party Claim affects the interests of the Indemnitee, the Indemnitee may elect to participate in (15but not control) days after notice thereof shall be deemed a waiver by the Indemnitor of its right to defend such action. In the defense of such claim or any litigation resulting therefromat its sole expense; provided, that the Indemnitor shall not, pay the Indemnitee's expenses (including reasonable attorneys' fees and expenses) if the Indemnitor's counsel would be inappropriate due to a conflict of interest between the Indemnitee and any party represented by such counsel with respect to such claim. No claim shall be settled or compromised without the written consent of the Indemnitee: Indemnitee (a) which consent shall not be unreasonably withheld, it being understood that it shall be reasonable for the Indemnitee to decline to consent to the entry of any judgment, or (b) enter into any settlement which or compromise that does not include as an unconditional term a condition thereof a release of all claims against such Indemnitee) unless the giving by Indemnitee shall have failed, after the claimant lapse of a reasonable time, but in no event more than thirty (30) days, after notice to it of such proposed settlement to notify the Indemnitor or the plaintiff to the Indemnitee of a release from all liability in respect to such claim or litigationIndemnitee's objection thereto. If such defense is unsuccessful or abandoned by the Indemnitor, then, upon the IndemnitorThe Indemnitee's failure to pay an amount sufficient to discharge any such claim or judgment, the Indemnitee may pay and settle the same and the indemnitor's liability shall be conclusively established by any such payment. If the Indemnitor fails to assume the defense of any such claim or litigation resulting therefrom, the Indemnitee may defend against and settle such claim or litigation in such manner as it may seem appropriate and the Indemnitor shall promptly reimburse the Indemnitee for the amount of all expenses, legal or otherwise, incurred by the Indemnitee in connection with the defense against or settlement of such claim or litigation. If no settlement is made, the Indemnitor shall promptly reimburse the Indemnitee for the amount of any judgment rendered with respect to such claim or such litigation and of all expenses, legal or otherwise, incurred by the Indemnitee in the defense thereof.to

Notice of Third Party Claims. If any action, suit or proceeding shall be commenced against, or any a claim or demand shall is made against ---------------------------- the Indemnitee or an Action is commenced by any Person who is not a Party or a member of a Party's Group (a "Third Party Claim") for which an Indemnifying ----------------- Party or Indemnifying Parties may be asserted against Buyer or Seller, in respect of which a party (Buyer or Seller) proposes obligated to seek provide indemnification to the Indemnitee under this Article VIIMaster Separation Agreement or any Ancillary Agreement, the party seeking indemnification Indemnitee shall give the Indemnifying Party or Indemnifying Parties (including in the case of a Shared Liability, the Party designated on Schedule 8.01 to have management responsibility (the "Indemnitee") shall give prompt notice thereof to the other party (the "IndemnitorManaging Party")) written notice -------------- thereof promptly (and in any event within 30 Business Days) after receipt by the Indemnitee of notice of the Third Party Claim, and which notice shall permit describe the Indemnitor, at its sole cost and expense, to assume the defense of any such claim or any litigation resulting therefromThird Party Claim in reasonable detail; provided, however, that no delay or -------- ------- failure by the Indemnitee shall have the option, at its own expense, to participate in the defense thereof; and provided further, that the failure of any Indemnitee to give notice as provided herein shall not relieve affect the Indemnitor of its obligations Indemnitee's right to indemnification under this Article VII Master Separation Agreement or any Ancillary Agreement, except to the extent that the Indemnitor Indemnifying Party is actually prejudiced by such failure delay or failure; provided, further, that the Indemnifying Party shall not -------- ------- be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice. Failure by the Indemnitor to notify Thereafter, the Indemnitee shall deliver to the Indemnifying Party or Indemnifying Parties, promptly (or in the case of its election to defend a Shared Liability any such action within fifteen (15) days after notice thereof shall be deemed a waiver by the Indemnitor of its right to defend such action. In Managing Party that has assumed the defense of such claim or Third Party Claim pursuant to this Master Separation Agreement) and in any litigation resulting therefrom, the Indemnitor shall not, without the written consent of event within three Business Days after the Indemnitee: (a) consent to the entry of any judgment's receipt thereof, or (b) enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability in respect to such claim or litigation. If such defense is unsuccessful or abandoned by the Indemnitor, then, upon the Indemnitor's failure to pay an amount sufficient to discharge any such claim or judgment, the Indemnitee may pay and settle the same and the indemnitor's liability shall be conclusively established by any such payment. If the Indemnitor fails to assume the defense of any such claim or litigation resulting therefrom, the Indemnitee may defend against and settle such claim or litigation in such manner as it may seem appropriate and the Indemnitor shall promptly reimburse the Indemnitee for the amount copies of all expenses, legal or otherwise, incurred notices and documents (including court papers) received by the Indemnitee in connection with the defense against or settlement of such claim or litigation. If no settlement is made, the Indemnitor shall promptly reimburse the Indemnitee for the amount of any judgment rendered with respect relating to such claim or such litigation and of all expenses, legal or otherwise, incurred by the Indemnitee in the defense thereofThird Party Claim.

Notice of Third Party Claims. If an Indemnitee shall receive notice or otherwise learn of the assertion by a Person (including any actionGovernmental Authority) who is not a member of the Indigo Group or the Purchaser or any of its Affiliates (including, suit or proceeding shall be commenced againstafter the Closing, or the Company Group) of any claim or demand of the commencement by any such Person of any Action (collectively, a “Third-Party Claim”) with respect to which an Indemnifying Party may be obligated to provide indemnification, Indigo or the Purchaser (as applicable and on behalf of the Indemnitee) will ensure that such Indemnitee shall be asserted against Buyer or Sellergive such Indemnifying Party written notice thereof (a “Third-Party Claim Notice”) within thirty (30) days after becoming aware of such Third-Party Claim. Any such Third-Party Claim Notice shall describe the Third-Party Claim in reasonable detail, including the nature of such Third-Party Claim, the basis therefor, the amount and calculation of the Losses (if then known) for which the Indemnitee is entitled to indemnification under this Article 11 (and a good faith estimate of any such future Losses relating thereto), and the provision(s) of the Agreement in respect of which a party (Buyer such Losses shall have been incurred or Seller) proposes to seek indemnification under this Article VII, the party seeking indemnification (the "Indemnitee") shall give prompt notice thereof to the other party (the "Indemnitor")suffered, and shall permit the Indemnitor, at its sole cost and expense, to assume the defense include a copy of any material documentation received from the Person asserting such claim Third-Party Claim. Notwithstanding the foregoing, the delay or any litigation resulting therefrom; provided, however, that the Indemnitee shall have the option, at its own expense, to participate in the defense thereof; and provided further, that the failure of any Indemnitee or other Person to give notice timely deliver a Third-Party Claim Notice as provided herein in this Section 11.03 shall not relieve the Indemnitor related Indemnifying Party of its obligations under this Article VII 11, except to the extent that the Indemnitor such Indemnifying Party is actually and materially prejudiced by such delay or failure to give notice. Failure by the Indemnitor to notify the Indemnitee of its election to defend any such action within fifteen (15) days after notice thereof shall be deemed a waiver by the Indemnitor of its right to defend such action. In the defense of such claim or any litigation resulting therefrom, the Indemnitor shall not, without the written consent of the Indemnitee: (a) consent to the entry of any judgment, or (b) enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability in respect to such claim or litigation. If such defense is unsuccessful or abandoned by the Indemnitor, then, upon the Indemnitor's failure to pay an amount sufficient to discharge any such claim or judgment, the Indemnitee may pay and settle the same and the indemnitor's liability shall be conclusively established by any such payment. If the Indemnitor fails to assume the defense of any such claim or litigation resulting therefrom, the Indemnitee may defend against and settle such claim or litigation in such manner as it may seem appropriate and the Indemnitor shall promptly reimburse the Indemnitee for the amount of all expenses, legal or otherwise, incurred by the Indemnitee in connection with the defense against or settlement of such claim or litigation. If no settlement is made, the Indemnitor shall promptly reimburse the Indemnitee for the amount of any judgment rendered with respect to such claim or such litigation and of all expenses, legal or otherwise, incurred by the Indemnitee in the defense thereof.

Notice of Third Party Claims. If any action, suit or proceeding shall be commenced against, or any claim or demand shall be asserted against Buyer HTCC or SellerTD, in respect of which a party (Buyer HTCC or SellerTD) proposes to seek indemnification under this Article VIIVI, the party seeking indemnification (the "Indemnitee") shall give prompt notice thereof to the other party (the "Indemnitor"), and shall permit the Indemnitor, at its sole cost and expense, to assume the defense of any such claim or any litigation resulting therefrom; provided, however, that the Indemnitee shall have the option, at its own expense, to participate in the defense thereof; and provided further, that the failure of any Indemnitee to give notice as provided herein shall not relieve the Indemnitor of its obligations under this Article VII VI except to the extent that the Indemnitor is actually prejudiced by such failure to give notice. Failure by the Indemnitor to notify the Indemnitee of its election to defend any such action within fifteen (15) days after notice thereof shall be deemed a waiver by the Indemnitor of its right to defend such action. In the defense of such claim or any litigation resulting therefrom, the Indemnitor shall not, without the written consent of the Indemnitee: (a) consent to the entry of any judgment, or (b) enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a release from all liability in respect to such claim or litigation. If such defense is unsuccessful or abandoned by the Indemnitor, then, upon the Indemnitor's failure to pay an amount sufficient to discharge any such claim or judgment, the Indemnitee may pay and settle the same and the indemnitorIndemnitor's liability shall be conclusively established by any such payment. If the Indemnitor fails to assume the defense of any such claim or litigation resulting therefrom, the Indemnitee may defend against and settle such claim or litigation in such manner as it may seem appropriate and the Indemnitor shall promptly reimburse the Indemnitee for the amount of all expenses, legal or otherwise, incurred by the Indemnitee in connection with the defense against or settlement of such claim or litigation. If no settlement is made, the Indemnitor shall promptly reimburse the Indemnitee for the amount of any judgment rendered with respect to such claim or such litigation and of all expenses, legal or otherwise, incurred by the Indemnitee in the defense thereof.