9.3
Procedures. Claims for indemnification under this Agreement shall be asserted and resolved as follows.
(a)
Third Party Claim
. If any Person entitled to seek indemnification under Section 9.1 (an “Indemnified Party”
)
receives Notice
of the assertion or commencement of any claim asserted against an Indemnified Party by a third party (“
Third Party Claim
”
)
in respect of any matter
that is subject to indemnification under Section 9.1, the Indemnified Party shall promptly (i) notify the Party obligated to the Indemnified Party
pursuant to Section 9.1 above, (the “Indemnifying Party”
)
of the Third Party Claim and (ii) transmit to the Indemnifying Party Notice (“
Claim
Notice”
)
describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), the
Indemnified Party
’
s best estimate of the amount of Losses attributable to the Third Party Claim and the basis of the Indemnified Party
’
s request for
indemnification under this Agreement. Failure to timely provide such Claim Notice shall not affect the right of the Indemnified Party
’
s
indemnification hereunder, except to the extent the Indemnifying Party is prejudiced by such delay or omission.
(b) Indemnifying Party. Except with respect to Tax Audits described in Section 7.2, the Indemnifying Party shall have the right
to defend the Indemnified Party against such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party that the Indemnifying
Party elects to assume the defense of the Third Party Claim (such election to be without prejudice to the right of the Indemnified Party to dispute
whether such claim is an identifiable Loss under this Article 9), then the Indemnifying Party shall have the right to defend such Third Party Claim
with counsel selected by the Indemnifying Party (who shall be reasonably satisfactory to the Indemnified Party), by all appropriate proceedings, to
a final conclusion or settlement at the discretion of the Indemnifying Party in accordance with this Section 9.3(b). The Indemnifying Party shall
have full control of such defense and proceedings, including any compromise or settlement thereof; provided that the Indemnifying Party shall not
enter into any settlement agreement or consent to the entry of any judgment with respect thereto without the written consent of the Indemnified
Party (which consent shall not be unreasonably withheld, conditioned, or delayed) that (i) does not result in a final resolution of the Indemnified
Parties
’
liability to the third party with respect to the claim (including, in the case of a settlement, an unconditional written release of the
Indemnified Party from all further liability in respect of such claim) or (ii) may materially and adversely affect the Indemnified Party (other than as a
result of money damages covered by the indemnity). If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and
expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim which the
Indemnifying Party elects to contest pursuant to this Section 9.3(b), including the making of any related counterclaim against the Person asserting
the Third Party Claim or any cross complaint against any Person. The Indemnified Party may participate in, but not control, any defense or
settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 9.3(b), and the Indemnified Party shall bear its
own costs and expenses with respect to such participation.
(c)
Indemnified Party. Except with respect to Tax Audits described in Section 7.2, if the Indemnifying Party does not notify the
Indemnified Party that the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 9.3(b), then the Indemnified Party shall
have the right to defend, and be reimbursed for its reasonable cost and expense (but only if the Indemnified Party is actually entitled to
indemnification hereunder) in regard to the Third Party Claim with counsel selected by the Indemnified Party (who shall be reasonably satisfactory
to the Indemnifying Party), by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party. In such
circumstances, the Indemnified Party shall defend any such Third Party Claim in good faith and have full control of such defense and proceedings;
provided, however, that the Indemnified Party may not enter into any compromise or settlement of such Third Party Claim if indemnification is to
be sought hereunder, without the Indemnifying Party
’
s consent (which consent shall not be unreasonably withheld, conditioned or delayed). The
Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 9.3
(c),
and the Indemnifying Party shall bear its own costs and expenses with respect to such participation.
(d)
Direct Claim
. Any claim by an Indemnified Party on account of Losses that does not result from a Third Party Claim (a
“
Direct Claim
”
)
will be asserted by giving the Indemnifying Party reasonably prompt Notice thereof, but in any event not later than thirty (30) days
after the Indemnified Party becomes aware of the events that gave rise to such Direct Claim. Such Notice by the Indemnified Party will describe the
Direct Claim in reasonable detail, will include copies of all available material written evidence thereof and will indicate the estimated amount, if
reasonably practicable, of damages that has been or may be sustained by the Indemnified Party. The Indemnifying Party will have a period of ten
(10) Business Days within which to respond in writing to such Direct Claim. If the Indemnifying Party does not so respond within such ten (10)
Business Day period, the Indemnifying Party will be deemed to have rejected such Direct Claim, in which event the Indemnified Party will be free to
pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Agreement.