Citigroup (C)

case of a Citi Mark Third Party Claim, the Purchaser shall promptly notify the Seller on becoming aware of the claim, and the following shall apply.

(i)                                  No admissions or compromises, dispositions or settlements in relation to such Third Party Claim shall be made on behalf of the Purchaser or any of the Purchaser’s Affiliates (or, after Closing, the Group Companies) without the prior written consent of the Seller (such consent not to be unreasonably withheld). In the case of a Citi Mark Third Party Claim, no such consent is required and neither the Purchaser nor any of the Purchaser’s Affiliates (or, after Closing, the Group Companies) shall have any rights whatsoever to compromise, dispose of, settle or defend such Citi Mark Third Party Claim.

(ii)                               If the Seller wishes to defend the Purchaser or the relevant Group Company against the Third Party Claim in their name and on their behalf, the Seller shall notify the Purchaser accordingly within a period of 15 Business Days after having been notified of the Third Party Claim in accordance with Clauses 12.6.1 and 12.6.2 (or such shorter period as is appropriate if the urgency of the matter requires a faster notification by the Seller). Upon such notification, the Seller shall be entitled, by notification to the Purchaser, to take any action it deems in its reasonable discretion necessary to defend, appeal, compromise or settle the Third Party Claim in the name and on behalf of the Purchaser or the relevant Group Company. If the Seller (or any of its Affiliates) decides to defend the Citi Mark Third Party Claim, it shall notify the Purchaser or the relevant Group Company of this decision and shall take any action it deems necessary to defend, appeal, compromise or settle the Citi Mark Third Party Claim in its sole discretion, including legal proceedings in the name of the Purchaser or any of the Purchaser’s Affiliates (and, after Closing, the Group Companies) or in the joint names of the Seller (or any of its Affiliates) and the Purchaser or any of the Purchaser’s Affiliates (and, after Closing, the Group Companies). The Seller shall (A) keep the Purchaser and the relevant Group Company fully informed of the progress of the Third Party Claim or Citi Mark Third Party Claim and its defence, (B) promptly provide the Purchaser or the relevant Group Company with copies of all material notices, communications and filings (including court papers), (C) save in respect of any Citi Mark Third Party Claims, ensure that the Purchaser or the relevant Group Company or one of several representatives of the Purchaser or relevant Group Company bound to secrecy by a professional code or by contractual undertaking in favour of the relevant Group Company will, to the extent legally permissible, be entitled to participate in any meetings or discussions (including in connection with any Tax audits) at its own cost and (D) save in respect of any Citi Mark Third Party Claims, consult with the Purchaser or the relevant Group Company prior to taking any action in relation to the Third Party Claim and its defence so as to give the Purchaser or the relevant Group Company the opportunity to comment and reasonably object. The Seller shall consult with the Purchaser and the relevant Group Company in relation to the suitable manner of dealing with the Third Party Claim (other than a Citi Mark Third Party Claim). If the Seller has decided to exercise its rights under this Clause 12.6.4(ii) in respect of a Third Party Claim, (A) the Seller shall act in good faith and

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(x) (other than in respect of a Citi Mark Third Party Claim) with the view to mitigate the amount and (y) (other than in respect of a Citi Mark Third Party Claim) in a manner which is not inconsistent with the interests of the Purchaser and the Group Companies, and (B) where such Third Party Claim (other than a Citi Mark Third Party Claim) involves a regulatory authority with jurisdiction over, or a material customer or current contractual counterparty of, the Purchaser or the relevant Group Company, the Seller shall reasonably consider and pay particular regard to any input or reasonable objections made by the Purchaser or the relevant Group Companies in relation to such Third Party Claim (other than a Citi Mark Third Party Claim). In addition to the Purchaser’s obligations pursuant to Clause 12.6.3, the Purchaser shall, and shall procure that the relevant Group Company shall, promptly give all assistance, documents and information to the Seller as may be reasonably required by the Seller to defend the Third Party Claim or Citi Mark Third Party Claim and, in particular, promptly forward all notices, communications and filings (including court papers) to the Seller.

(iii)                            If the Seller does not notify the Purchaser in accordance with Clause 12.6.4(ii), the Purchaser shall, or shall procure that the relevant Group Company shall, conduct the defence of the Third Party Claim diligently and in good faith and take any such action as the Seller may reasonably request to defend, appeal, compromise or settle the Third Party Claim. The Purchaser shall, and shall procure that the relevant Group Company shall, (A) keep the Seller fully informed of the progress of the Third Party Claim and its defence, (B) promptly provide the Seller with copies of all notices, communications and filings (including court papers), (C) ensure that the Seller and/or one or several representatives of the Seller bound to secrecy by professional code will, to the extent legally permissible, be entitled to participate in any meetings or discussions (including in connection with any Tax audits) and (D) consult with the Seller prior to taking any action in relation to the Third Party Claim and its defence so as to give the Seller the opportunity to comment and reasonably object.

(iv)                           The Purchaser shall, and shall procure that the relevant Group Company shall, at all times and in particular until the Seller has notified the Purchaser in accordance with Clause 12.6.4(ii), act in the best interests of the Seller in relation to a Third Party Claim and shall consult with the Seller in relation to the suitable manner of dealing with the Third Party Claim.

(v)                              The costs and expenses incurred in relation to the defence of the Third Party Claim or Citi Mark Third Party Claim shall be borne as follows:

(a)                        all costs and expenses reasonably incurred by the Purchaser, its Affiliates or the relevant Group Company (other than internal costs such as labour or overhead costs) shall, to the extent the Third Party Claim results from a Breach for which the Seller is, subject to the limitations set forth in this Agreement, liable hereunder, be borne by the Seller, subject to the Purchaser having complied with its obligations under this Clause 12.6;

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(b)                       in the event that the Purchaser or the relevant Group Company shall in good faith determine that the Seller may have available to it one or more defences or counterclaims that are inconsistent with one or more of those that may be available to the Purchaser or the relevant Group Company in respect of such Third Party Claim, the Seller shall reimburse the Purchaser or the relevant Group Company for all costs and expenses reasonably incurred by the counsel selected by the Purchaser or the relevant Group Company in connection with such Third Party Claim;

(c)                        for any Citi Mark Third Party Claim or any Third Party Claim that the Seller chooses to defend in accordance with this Clause 12.6.4, all costs and expenses in its conduct of such claim shall be borne by the Seller and the Seller shall be entitled to any damages, account of profits and awards of costs recovered; and

(d)                       in respect of all other costs and expenses incurred by the Seller or the Purchaser, the Seller and the Purchaser shall each bear its own costs and expenses.

13                               Purchaser Guarantees

The Purchaser guarantees by way of an independent promise of guarantee (selbständiges Garantieversprechen) pursuant to § 311 of the German Civil Code (BGB) that the statements set forth in Clauses 13.1 to 13.3 (the “Purchaser’s Guarantees”) are true and correct as of the date of this Agreement or as of such other date as is expressly stated in the relevant Purchaser’s Guarantee and as of the Closing Date. The legal consequences in the case of a breach of the Purchaser’s Guarantees shall be governed by §§  249 et seq. of the German Civil Code (BGB).