NOT LATER THAN TEN (10) CALENDAR DAYS AFTER RECEIPT OF
NOTICE OF SUCH THIRD PARTY CLAIM, PROVIDED, HOWEVER, THAT THE FAILURE OF AN
INDEMNITEE TO NOTIFY THE INDEMNITOR WITHIN THE TIME PERIOD SET FORTH HEREIN
SHALL ONLY RELIEVE THE INDEMNITOR FROM ITS OBLIGATION TO INDEMNIFY TO THE EXTENT
THAT THE INDEMNITOR IS MATERIALLY PREJUDICED BY SUCH FAILURE OR DELAY (WHETHER
AS A RESULT OF THE FORFEITURE OF SUBSTANTIVE RIGHTS OR DEFENSES OR OTHERWISE).
THE INDEMNITOR SHALL BE ENTITLED, UPON WRITTEN NOTICE TO THE INDEMNITEE, TO
ASSUME THE INVESTIGATION AND DEFENSE THEREOF.
WHETHER OR NOT
33
THE INDEMNITOR ELECTS TO ASSUME THE INVESTIGATION AND DEFENSE OF ANY THIRD PARTY
CLAIM, THE INDEMNITEE SHALL HAVE THE RIGHT TO EMPLOY SEPARATE COUNSEL AND TO
PARTICIPATE IN THE INVESTIGATION AND DEFENSE THEREOF AT ITS OWN EXPENSE. WITHOUT
THE PRIOR WRITTEN CONSENT OF AN INDEMNITEE, WHICH SHALL NOT BE UNREASONABLY
CONDITIONED, WITHHELD OR DELAYED, THE INDEMNITOR WILL NOT ENTER INTO ANY
SETTLEMENT OF OR CONSENT TO THE ENTRY OF JUDGMENT IN CONNECTION WITH ANY THIRD
PARTY CLAIM THAT (I) DOES NOT CONTAIN, AS AN UNCONDITIONAL TERM THEREOF, THE
RELEASE OF THE INDEMNITEE FROM ALL LIABILITY IN RESPECT OF SUCH THIRD PARTY
CLAIM OR SUCH THIRD PARTY CLAIM IS NOT DISMISSED AGAINST THE INDEMNITEE WITH
PREJUDICE AND WITHOUT THE IMPOSITION OF ANY FINANCIAL OR OTHER OBLIGATION ON THE
INDEMNITEE OR (II) ADMITS THE LIABILITY OR FAULT OF THE INDEMNITEE (THE
"SETTLEMENT REQUIREMENTS").
IF A SETTLEMENT OFFER SOLELY FOR MONEY DAMAGES (AND
OTHERWISE SATISFYING THE SETTLEMENT REQUIREMENTS) IS MADE TO RESOLVE A THIRD
PARTY CLAIM AND THE INDEMNITOR NOTIFIES THE INDEMNITEE IN WRITING OF THE
INDEMNITOR'S WILLINGNESS TO ACCEPT THE SETTLEMENT OFFER AND PAY THE AMOUNT
CALLED FOR BY SUCH OFFER WITHOUT RESERVATION OF ANY RIGHTS OR DEFENSES AGAINST
THE INDEMNITEE, THE INDEMNITEE MAY CONTINUE TO CONTEST SUCH CLAIM, FREE OF ANY
PARTICIPATION BY THE INDEMNITOR, AND THE AMOUNT OF ANY ULTIMATE LIABILITY WITH
RESPECT TO SUCH THIRD PARTY CLAIM THAT THE INDEMNITOR HAS AN OBLIGATION TO PAY
HEREUNDER SHALL BE LIMITED TO THE LESSER OF (X) THE AMOUNT OF THE SETTLEMENT
OFFER THAT THE INDEMNITEE DECLINED TO ACCEPT PLUS THE DIFFERENCE, IF ANY,
BETWEEN (1) SUCH SETTLEMENT AMOUNT AND (2) THE AGGREGATE AMOUNT OF THE LOSSES OF
THE INDEMNITEE RELATING TO SUCH THIRD PARTY CLAIM THROUGH THE DATE OF ITS
REJECTION OF THE SETTLEMENT OFFER OR (Y) THE AGGREGATE LOSSES OF THE INDEMNITEE
WITH RESPECT TO SUCH CLAIM.
THE PARTY CONTROLLING ANY DEFENSE SHALL KEEP THE
OTHER PARTY ADVISED OF THE STATUS OF SUCH ACTION, SUIT, PROCEEDING OR CLAIM AND
THE DEFENSE THEREOF AND SHALL CONSIDER IN GOOD FAITH ALL REASONABLE
RECOMMENDATIONS MADE BY THE OTHER PARTY WITH RESPECT THERETO.
(B)
DIRECT CLAIMS. ANY CLAIM BY AN INDEMNITEE FOR LOSSES THAT DO NOT
RESULT FROM A THIRD PARTY CLAIM (EACH, A "DIRECT CLAIM") SHALL BE ASSERTED BY
GIVING THE INDEMNITOR PROMPT WRITTEN NOTICE THEREOF, BUT IN ANY EVENT NOT LATER
THAN THIRTY (30) CALENDAR DAYS AFTER THE INCURRENCE THEREOF OR SUCH INDEMNITEE'S
KNOWLEDGE OF SUCH