Common use of Procedure for Claims Clause in Contracts

Procedure for Claims. (i) If a claim for Damages (a "Claim") is to be made by a person entitled to indemnification hereunder, the person claiming such indemnification (the "Indemnified Party"), subject to clause (ii) below, shall give written notice (a "Claim Notice") to the indemnifying person (the "Indemnifying Party") (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) as soon as practicable after the Indemnified Party becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 9.2, but in no event shall the Claim Notice be effective if it is received after the expiration of the Survival Period. The failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder, except and only to the extent that, the Claim Notice is received after the expiration of the Survival Period or the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) demonstrates actual material damage caused by such failure. In the case of a Claim involving the assertion of a claim by a third party (whether pursuant to a lawsuit or other legal action or otherwise, a "Third-Party Claim"), if the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated to indemnify the Indemnified Party under the terms of its indemnity hereunder in connection with such Third-Party Claim, then (A) the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) shall be entitled and, if it so elects, shall be obligated at its own cost, risk and expense (or, if the Person making such election is the Member Representative, at the cost, risk and expense of the Member or group of Members that is the Indemnifying Party), (1) to take control of the defense and investigation of such Third-Party Claim and (2) to pursue the defense thereof in good faith by appropriate actions or proceedings promptly taken or instituted and diligently pursued, including, without limitation, to employ and engage attorneys of its own choice reasonably acceptable to the Indemnified Party to handle and defend the same, and (B) the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) shall be entitled (but not obligated), if it so elects, to compromise or settle such claim, as long as such proposed settlement or judgment involves only the payment of money damages; otherwise, the Indemnifying Party shall not compromise or settle such claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld. In the event the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) elects to assume control of the defense and investigation of such lawsuit or other legal action in accordance with this Section 9.2(b), the Indemnified Party may, at its own cost and expense, participate in the investigation, trial and defense of such Third-Party Claim; provided that, if the named persons to a lawsuit or other legal action include both the Indemnifying Party (or the Member Representative acting on behalf of such Indemnifying Party) and the Indemnified Party and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party (or the Member Representative acting on behalf of such Indemnifying Party), the Indemnified Party shall be entitled, at the Indemnified Party's cost, risk and expense, to separate counsel of its own choosing. If the Indemnifying Party (or, if the Indemnifying 45 Party is a Member or group of Members, the Member Representative) fails to assume the defense of such Third-Party Claim in accordance with this Section 9.2 within 10 calendar days after receipt of the Claim Notice, the Indemnified Party against which such Third-Party Claim has been asserted shall (upon delivering notice to such effect to the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative)) have the right to undertake, at the Indemnifying Party's cost, risk and expense, the defense, compromise and settlement of such Third-Party Claim on behalf of and for the account of the Indemnifying Party; and shall be entitled to settle or compromise such Third Party Claim without the prior written consent of such Indemnified Party, as long as such compromise or settlement involves only the payment of money damages, otherwise provided that such Third-Party Claim shall not be compromised or settled without the written consent of the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative), which consent shall not be unreasonably withheld. In the event the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) assumes the defense of the claim, the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) shall keep the Indemnified Party reasonably informed of the progress of any such defense, compromise or settlement, and in the event the Indemnified Party assumes the defense of the claim, the Indemnified Party shall keep the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 9.2 and for any final judgment (subject to any right of appeal), and the Indemnifying Party agrees to indemnify and hold harmless each Indemnified Party from and against any and all Damages by reason of such settlement or judgment.

Procedure for Claims. (ia) If In each instance, when a claim for Damages indemnification pursuant to Section 10.2 (a "“Claim"”) is to be made by a person an Indemnified Party entitled to indemnification hereunder, the person aggregate amount of Damages sought with respect to one or more of the submitted Claims must exceed $5,000. The Indemnified Party claiming such indemnification (the "Indemnified Party"), subject to clause (ii) below, shall give written notice (a "Claim Notice") to the indemnifying person other Party (the "“Indemnifying Party"”) (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) as soon as practicable reasonably promptly after the Indemnified Party becomes aware of any fact, condition or event which that may give rise to Damages for which indemnification may be sought under this Section 9.210.2, but in no event shall or receipt by the Claim Notice Indemnified Party of notice of a claim involving the assertion of a claim by a Third Party, including a Governmental Entity, that may give rise to Damages for which indemnification may be effective if it is received after the expiration of the Survival Periodsought under Section 10.2 (whether pursuant to a lawsuit, other legal action or otherwise, a “Third Party Claim”). The failure of any Indemnified Party to give timely notice hereunder shall not affect its rights to indemnification hereunder, except and only to the extent that, the Claim Notice is received after the expiration of the Survival Period or that the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) demonstrates actual material suffers damage caused by such failure. In The Indemnifying Party shall have 30 days (or such lesser number of days set forth in the case notice as may be required by court proceeding in the event of a Claim involving litigated matter) after receipt of the assertion of a claim by a third party (whether pursuant notice to a lawsuit or other legal action or otherwise, a "Third-Party Claim"), if the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) shall acknowledge in writing to notify the Indemnified Party that it desires to defend the Indemnified Party against such Third Party Claim, in which case the Indemnifying Party shall be obligated to indemnify defend the Indemnified Party under against such Third Party Claim. In the terms case of its indemnity hereunder in connection with such Third-a Third Party Claim, then subject to the limitations of Section 10.2, the party conducting the defense (Athe “Defending Party”) shall determine and conduct the defense, compromise or settlement of such Third Party Claim, and, subject to the limitations of Section 10.2, (a) the Indemnifying Party other party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative“Non-Defending Party”) shall make available to the Defending Party any documents and materials in its or its Affiliates’ possession or control that may be entitled andnecessary to the defense of such Third Party Claim and (b) the Defending Party shall keep the other Party reasonably informed of all material developments and events relating to such Third Party Claim. The Non- Defending Party, if it so elects, shall be obligated at its own costsole option and expense, risk and expense (or, if the Person making such election is the Member Representative, at the cost, risk and expense of the Member or group of Members that is the Indemnifying Party), (1) to take control of the may participate in any defense and investigation of such Third-Third Party Claim and or settlement negotiations with respect to such Third Party Claim, unless the Non-Defending Party shall have reasonably concluded, based on the written advice of counsel, that representation of the Non-Defending Party by the same counsel as represents the Defending Party would be inappropriate due to an actual material conflict of interest between them, in which chase the Non-Defending Party’s participation shall be at the expense of the Defending Party. Except with the written consent of the Non-Defending Party (2) not to pursue be unreasonably withheld, conditioned or delayed), the Defending Party will not, in the defense of a Third Party Claim, consent to the entry of any judgment or enter into any compromise or settlement (w) which does not include as an unconditional term thereof in good faith by appropriate actions or proceedings promptly taken or instituted and diligently pursued, including, without limitation, to employ and engage attorneys of its own choice reasonably acceptable the giving to the Indemnified Party by the Third Party of a release from all liability with respect to handle such suit, claim, action or proceeding; (x) unless there is no finding or admission of (i) any violation of Law by the Indemnified Party (or any Affiliate thereof), (ii) any liability on the part of the Indemnified Party (or any Affiliate thereof) not indemnified hereunder or (iii) any violation of the rights of any Person and defend no effect on any other claims of a similar nature that may be made by the samesame Third Party against the Indemnified Party (or any Affiliate thereof); (y) which exceeds the applicable indemnification limitations as set forth herein; or (z) which provides for 35 injunctive or other non-monetary equitable relief against the Indemnified Party or its Affiliates or their respective businesses. (b) Notwithstanding the foregoing, if a Third Party Claim includes or would reasonably be expected to include both a claim for Taxes that are Liabilities pursuant to Section 2.3(c) (“Purchaser Taxes”) and a claim for Taxes that are not Liabilities pursuant to Section 2.3(c) (“Seller Taxes”), and such claim for Seller Taxes is not separable from such a claim for Purchaser Taxes, Purchaser (B) the Indemnifying Party (or, if the Indemnifying Party is a Member claim for Purchaser Taxes exceeds or group of Membersreasonably would be expected to exceed in amount the claim for Seller Taxes) or otherwise Seller (Seller or Purchaser, as the case may be, the Member Representative“Controlling Party”) shall be entitled to control the defense of such Third Party Claim (but not obligatedsuch Third Party Claim, a “Tax Claim”). In such case, if it so elects, to compromise the other Party (Seller or settle such claimPurchaser, as long as such proposed settlement or judgment involves only the payment of money damages; otherwisecase may be, the Indemnifying “Non-Controlling Party”) shall be entitled to participate fully (at the Non-Controlling Party’s sole expense) in the conduct of such Tax Claim and the Controlling Party shall not compromise or settle such claim Tax Claim without the prior written consent of the Indemnified Party, such Non- Controlling Party (which consent shall not be unreasonably withheld, conditioned or delayed). In the event the Indemnifying Party (or, if the Indemnifying Party is a Member or group The costs and expenses of Members, the Member Representative) elects to assume control of the defense and investigation of such lawsuit or other legal action in accordance with this Section 9.2(b), the Indemnified Party may, at its own cost and expense, participate in the investigation, trial and defense of such Third-Party Claim; provided that, if the named persons to a lawsuit or other legal action include both the Indemnifying Party (or the Member Representative acting on behalf of such Indemnifying Party) and the Indemnified Party and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party (or the Member Representative acting on behalf of such Indemnifying Party), the Indemnified Party shall be entitled, at the Indemnified Party's cost, risk and expense, to separate counsel of its own choosing. If the Indemnifying Party (or, if the Indemnifying 45 Party is a Member or group of Members, the Member Representative) fails to assume conducting the defense of such Third-Party Tax Claim in accordance with this Section 9.2 within 10 calendar days after receipt shall be reasonably apportioned based on the relative amounts of the Tax Claim Noticethat are Seller Taxes and that are Purchaser Taxes. ARTICLE 11 MISCELLANEOUS 11.1 Public Announcements. Other than as set forth in Section 7.1, the Indemnified no Party against which such Third-Party Claim has been asserted shall (upon delivering notice to such effect to the Indemnifying Party (orissue or make any public announcement, if the Indemnifying Party is a Member press release or group of Members, the Member Representative)) have the right to undertake, at the Indemnifying Party's cost, risk and expense, the defense, compromise and settlement of such Third-Party Claim on behalf of and for the account of the Indemnifying Party; and shall be entitled to settle other public disclosure regarding this Agreement or compromise such Third Party Claim its subject matter without the prior written consent approval of such Indemnified the other Party, as long as except for any such compromise or settlement involves only disclosure that is, in the payment of money damages, otherwise provided that such Third-Party Claim shall not be compromised or settled without the written consent opinion of the Indemnifying Party (ordisclosing Party’s counsel, if required by applicable Law or the Indemnifying Party is rules of a Member or group of Members, stock exchange on which the Member Representative), which consent shall not be unreasonably withheld. In the event the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) assumes the defense securities of the claimdisclosing Party are listed. If a Party is, in the Indemnifying opinion of its counsel, required by applicable Law or the rules of a stock exchange on which its securities are listed to make a public disclosure, such Party (or, if shall submit the Indemnifying Party is a Member or group of Members, the Member Representative) shall keep the Indemnified Party reasonably informed proposed disclosure in writing as far in advance of the progress disclosure as practicable to the other Party and provide the other Party a reasonable opportunity to comment thereon. The contents of any such defensepublic announcement, compromise press release or settlement, other public disclosure that has been reviewed and in approved by the event reviewing Party or that is consistent with the Indemnified foregoing may then be rereleased by any Party assumes the defense of the claim, the Indemnified Party shall keep the Indemnifying Party (or, if the Indemnifying Party is without a Member requirement for advance notice or group of Members, the Member Representative) reasonably informed of the progress of any such defense, compromise or settlementreapproval. The Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 9.2 and for any final judgment (subject to any right of appeal), and the Indemnifying Party agrees to indemnify and hold harmless each Indemnified Party from and against any and all Damages by reason of such settlement or judgment.11.2

Procedure for Claims. (i) If a claim for Damages (a "Claim") is to be made by a person entitled to indemnification hereunder, the person claiming such indemnification (the "Indemnified Party"), subject to clause (ii) below, shall give written notice (a "Claim Notice") to the indemnifying person (the "Indemnifying Party") (or, if the Indemnifying Party is a Member Stockholder or group of MembersStockholders, the Member Stockholder Representative) as soon as practicable after the Indemnified Party becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 9.2, but in no event shall the Claim Notice be effective if it is received after the expiration of the Survival Period. The failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder, except and only to the extent that, the Claim Notice is received after the expiration of the Survival Period or the Indemnifying Party (or, if the Indemnifying Party is a Member Stockholder or group of MembersStockholders, the Member Stockholder Representative) demonstrates actual material damage caused by such failure. In the case of a Claim involving the assertion of a claim by a third party (whether pursuant to a lawsuit or other legal action or otherwise, a "Third-Party Claim"), if the Indemnifying Party (or, if the Indemnifying Party is a Member Stockholder or group of MembersStockholders, the Member Stockholder Representative) shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated to indemnify the Indemnified Party under the terms of its indemnity hereunder in connection with such Third-Party Claim, then (A) the Indemnifying Party (or, if the Indemnifying Party is a Member Stockholder or group of MembersStockholders, the Member Stockholder Representative) shall be entitled and, if it so elects, shall be obligated at its own cost, risk and expense (or, if the Person making such election is the Member Stockholder Representative, at the cost, risk and expense of the Member Stockholder or group of Members Stockholders that is the Indemnifying Party), (1) to take control of the defense and investigation of such Third-Party Claim and (2) to pursue the defense thereof in good faith by appropriate actions or proceedings promptly taken or instituted and diligently pursued, including, without limitation, to employ and engage attorneys of its own choice reasonably acceptable to the Indemnified Party to handle and defend the same, and (B) the Indemnifying Party (or, if the Indemnifying Party is a Member Stockholder or group of MembersStockholders, the Member Stockholder Representative) shall be entitled (but not obligated), if it so elects, to compromise or settle such claim, as long as such proposed settlement or judgment involves only the payment of money damages; otherwise, the Indemnifying Party shall not compromise or settle such claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld. In the event the Indemnifying Party (or, if the Indemnifying Party is a Member Stockholder or group of MembersStockholders, the Member Stockholder Representative) elects to assume control of the defense and investigation of such lawsuit or other legal action in accordance with this Section 9.2(b), the Indemnified Party may, at its own cost and expense, participate in the investigation, trial and defense of such Third-Party Claim; provided that, if the named persons to a lawsuit or other legal action include both the Indemnifying Party (or the Member Stockholder Representative acting on behalf of such Indemnifying Party) and the Indemnified Party and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party (or the Member Stockholder Representative acting on behalf of such Indemnifying Party), the Indemnified Party shall be entitled, at the Indemnified Party's cost, risk and expense, to separate counsel of its own choosing. If the Indemnifying Party (or, if the Indemnifying 45 Party is a Member Stockholder or group of MembersStockholders, the Member Stockholder Representative) fails to assume the defense of such Third-Party Claim in accordance with this Section 9.2 within 10 calendar days after receipt of the Claim Notice, the Indemnified Party against which such Third-Party Claim has been asserted shall (upon delivering notice to such effect to the Indemnifying Party (or, if the Indemnifying Party is a Member Stockholder or group of MembersStockholders, the Member Stockholder Representative)) have the right to undertake, at the Indemnifying Party's cost, risk and expense, the defense, compromise and settlement of such Third-Party Claim on behalf of and for the account of the Indemnifying Party; and shall be entitled to settle or compromise such Third Party Claim without the prior written consent of such Indemnified Party, as long as such compromise or settlement involves only the payment of money damages, otherwise provided that such Third-Party Claim shall not be compromised or settled without the written consent of the Indemnifying Party (or, if the Indemnifying Party is a Member Stockholder or group of MembersStockholders, the Member Stockholder Representative), which consent shall not be unreasonably withheld. In the event the Indemnifying Party (or, if the Indemnifying Party is a Member Stockholder or group of MembersStockholders, the Member Stockholder Representative) assumes the defense of the claim, the Indemnifying Party (or, if the Indemnifying Party is a Member Stockholder or group of MembersStockholders, the Member Stockholder Representative) shall keep the Indemnified Party reasonably informed of the progress of any such defense, compromise or settlement, and in the event the Indemnified Party assumes the defense of the claim, the Indemnified Party shall keep the Indemnifying Party (or, if the Indemnifying Party is a Member Stockholder or group of MembersStockholders, the Member Stockholder Representative) reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 9.2 and for any final judgment (subject to any right of appeal), and the Indemnifying Party agrees to indemnify and hold harmless each Indemnified Party from and against any and all Damages by reason of such settlement or judgment.

Procedure for Claims. (i) If a claim for Damages (a "Claim") is to be made under this Article 11 by a person entitled to indemnification hereunder, the person claiming such indemnification (the "Indemnified Party"), subject to clause (ii) below, shall give written notice (a "Claim Notice") to the indemnifying person (the "Indemnifying Party") (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) as soon as practicable after the Indemnified Party becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 9.2, but in no event shall the Claim Notice be effective if it is received after the expiration of the Survival Period11.2. The failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder, except and only to the extent that, the Claim Notice is received after the expiration of the Survival Period or the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) demonstrates actual material damage caused by such failure. In the case of a Claim involving the assertion of a claim by a third party (whether pursuant to a lawsuit or other legal action or otherwise, a "Third-Party Claim"), if the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated to indemnify the Indemnified Party under the terms of its indemnity hereunder in connection with such Third-Party Claim, then (A) the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) shall be entitled and, if it so elects, shall be obligated at its own cost, risk and expense (or, if the Person making such election is the Member Representative, at the cost, risk and expense of the Member or group of Members that is the Indemnifying Party)expense, (1) to take control of the defense and investigation of such Third-Party Claim and (2) to pursue the defense thereof in good faith by appropriate actions or proceedings promptly taken or instituted and diligently pursued, including, without limitation, to employ and engage attorneys of its own choice reasonably acceptable to the Indemnified Party to handle and defend the same, and (B) the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) shall be entitled (but not obligated), if it so elects, to compromise or settle such claim, as long as such proposed settlement or judgment involves only the payment of money damages; otherwise, the Indemnifying Party shall not which compromise or settle such claim without settlement shall be made only with the prior written consent of the Indemnified Party, which such consent shall not to be unreasonably withheld. In the event the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) elects to assume control of the defense and investigation of such lawsuit or other legal action in accordance with this Section 9.2(b)11.4, the Indemnified Party may, at its own cost and expense, participate in the investigation, trial and defense of such Third-Party Claim; provided that, if the named persons to a lawsuit or other legal action include both the Indemnifying Party (or the Member Representative acting on behalf of such Indemnifying Party) and the Indemnified Party and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party (or the Member Representative acting on behalf of such Indemnifying Party), the Indemnified Party shall be entitled, at the Indemnified Indemnifying Party's reasonable cost, risk and expense, to separate counsel of its own choosing. If the Indemnifying Party (or, if the Indemnifying 45 Party is a Member or group of Members, the Member Representative) fails to assume the defense of such Third-Party Claim in accordance with this Section 9.2 11.4 within 10 ten (10) calendar days after receipt of the Claim Notice, the Indemnified Party against which such Third-Party Claim has been asserted shall (upon delivering notice to such effect to the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative)Party) have the right to undertake, at the Indemnifying Party's cost, risk and expense, undertake the defense, compromise and settlement of such Third-Party Claim on behalf of and for the account of the Indemnifying Party; and shall be entitled to settle or compromise such Third Party Claim without the prior written consent of such Indemnified Party, as long as such compromise or settlement involves only the payment of money damages, otherwise provided that such Third-Party Claim shall not be compromised or settled without the written consent of the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative), which consent shall not be unreasonably withheldClaim. In the event the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) assumes the defense of the claim, the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) shall keep the Indemnified Party reasonably informed of the progress of any such defense, compromise or settlement, and in the event the Indemnified Party assumes the defense of the claim, the Indemnified Party shall keep the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 9.2 11.4 and for any final judgment (subject to any right of appeal), and the Indemnifying Party agrees to indemnify and hold harmless each Indemnified Party from and against any and all Damages by reason of such settlement or judgment.

Procedure for Claims. (i) If a claim for Damages indemnification pursuant to Section 8.2 (a "“Claim"”) is to be made by a person Buyer Indemnified Party entitled to indemnification hereunder, the person Buyer Indemnified Party claiming such indemnification (the "“Indemnified Party"), subject to clause (ii”) below, shall give written notice (a "“Claim Notice"”) to the indemnifying person (the "Indemnifying Party") (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) as soon as practicable Seller after the Indemnified Party becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 9.28.2.Subject to the provisions of Section 8.2(g) above, but in no event shall the Claim Notice be effective if it is received after the expiration of the Survival Period. The failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder, except and only to the extent that, the Claim Notice is received after the expiration of the Survival Period or the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) demonstrates actual material damage caused by such failure. In the case of a Claim brought pursuant to Section 8.2 involving the assertion of a claim by a third party (whether pursuant to a lawsuit or lawsuit, other legal action or otherwise, a "Third-“Third Party Claim"”), if the Indemnifying Party (orBuyer shall determine and conduct the defense, if the Indemnifying Party is a Member compromise or group settlement of Members, the Member Representative) shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated to indemnify the Indemnified Party under the terms of its indemnity hereunder in connection with such Third-Third Party Claim, then and (Aa) all reasonable expenses relating to the Indemnifying defense of such Third Party Claim (or, if whether or not incurred by the Indemnifying Party is a Member or group of Members, the Member RepresentativeBuyer) shall be entitled and, if it so elects, shall be obligated at its own cost, risk borne and expense (or, if the Person making such election is the Member Representative, at the cost, risk and expense of the Member or group of Members that is paid exclusively by the Indemnifying Party); (ii) the Seller shall make available to the Buyer any documents and materials in their possession or control that may be necessary to the defense of such Third Party Claim; and (c) the Buyer shall keep the Seller informed of all material developments and events relating to such Third Party Claim. The Seller shall be entitled, (1) at its sole option and expense, to take control of the participate in, but not to determine or conduct, any defense and investigation of such Third-Third Party Claim and (2) or settlement negotiations with respect to pursue the defense thereof in good faith by appropriate actions or proceedings promptly taken or instituted and diligently pursued, including, without limitation, to employ and engage attorneys of its own choice reasonably acceptable to the Indemnified Party to handle and defend the same, and (B) the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) shall be entitled (but not obligated), if it so elects, to compromise or settle such claim, as long as such proposed settlement or judgment involves only the payment of money damages; otherwise, the Indemnifying Party shall not compromise or settle such claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld. In the event the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) elects to assume control of the defense and investigation of such lawsuit or other legal action in accordance with this Section 9.2(b), the Indemnified Party may, at its own cost and expense, participate in the investigation, trial and defense of such Third-Party Claim; provided that, if the named persons to a lawsuit or other legal action include both the Indemnifying Party (or the Member Representative acting on behalf of such Indemnifying Party) and the Indemnified Party and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party (or the Member Representative acting on behalf of such Indemnifying Party), the Indemnified Party shall be entitled, at the Indemnified Party's cost, risk and expense, to separate counsel of its own choosing. If the Indemnifying Party (or, if the Indemnifying 45 Party is a Member or group of Members, the Member Representative) fails to assume the defense of such Third-Party Claim in accordance with this Section 9.2 within 10 calendar days after receipt of the Claim Notice, the Indemnified Party against which such Third-Party Claim has been asserted shall (upon delivering notice to such effect to the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative)) have the right to undertake, at the Indemnifying Party's cost, risk and expense, the defense, compromise and settlement of such Third-Party Claim on behalf of and for the account of the Indemnifying Party; and shall be entitled to settle or compromise such Third Party Claim without the prior written consent of such Indemnified Party, as long as such compromise or settlement involves only the payment of money damages, otherwise provided that such Third-Party Claim shall not be compromised or settled without the written consent of the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative), which consent shall not be unreasonably withheld. In the event the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) assumes the defense of the claim, the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) shall keep the Indemnified Party reasonably informed of the progress of any such defense, compromise or settlement, and in the event the Indemnified Party assumes the defense of the claim, the Indemnified Party shall keep the Indemnifying Party (or, if the Indemnifying Party is a Member or group of Members, the Member Representative) reasonably informed of the progress of any such defense, compromise or settlementClaim. The Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 9.2 8.4 and for any final judgment (subject to any right of appeal). If there is a Third Party Claim that, and if adversely determined would give rise to a right of recovery for Damages hereunder, then any amounts incurred by the Indemnifying Party agrees to indemnify and hold harmless each Indemnified Party from and against any and all Damages by reason Parties in defense of such settlement or judgmentclaim, regardless of the outcome of such claim, shall be deemed “Damages” hereunder.