Common use of Defense of Third Person Claims Clause in Contracts

Defense of Third Person Claims. The Indemnifying Party shall have twenty (20) calendar days after receipt of the Litigation Notice to notify the Claimant that it acknowledges its obligation to indemnify and hold harmless the Claimant with respect to the Indemnity Loss set forth in the Litigation Notice and that it elects to conduct and control any Proceeding with respect to an identifiable claim (the “Election Notice”). If the Indemnifying Party gives a Disagreement Notice (as hereinafter defined) or does not give the foregoing Election Notice during such 20-day period, the Claimant shall have the right (but not the obligation) to defend, contest, settle or compromise such Proceeding in the exercise of its reasonable discretion; provided, however, that the right of the Claimant to indemnification hereunder shall not be conclusively established thereby. If the Indemnifying Party timely gives the foregoing Election Notice and provides information satisfactory to the Claimant in its reasonable discretion confirming the Indemnifying Party’s financial capacity to defend such Indemnity Loss and provide indemnification with respect to such Indemnity Loss, the Indemnifying Party shall have the right to undertake, conduct and control, through counsel reasonably satisfactory to the Claimant and, subject to the provisions set forth below, at the Indemnifying Party’s sole expense, the conduct and settlement of such Proceeding, and the Claimant shall cooperate with the Indemnifying Party in connection therewith; provided, however, that (a) the Indemnifying Party shall not thereby consent to the imposition of any injunction against the Claimant without the prior written consent of the Claimant, (b) the Indemnifying Party shall permit the Claimant to participate in such conduct or settlement through legal counsel chosen by the Claimant, but the fees and expenses of such legal counsel shall be borne by the Claimant unless (i) the Indemnifying Party shall have agreed in writing to the continuing participation of such counsel, or (ii) the named parties to any such Proceeding (including any impleaded parties) include both the Indemnifying Party and the Claimant and representation of both parties by the same counsel would, in the opinion of Claimant’s outside legal counsel, be inappropriate due to the actual or potential differing interests between them, (c) upon a final determination of such Proceeding, the Indemnifying Party shall promptly reimburse the Claimant, to the extent required under this ARTICLE VII, for the full amount of any Indemnity Loss incurred by the Claimant, except fees and expenses of legal counsel that the Claimant incurred after the assumption of the conduct and control of such Proceeding by the Indemnifying Party in good faith, (d) the Claimant shall have the right to pay or settle any such Proceeding; provided, however, that in the event of such payment or settlement which is not consented to by the Indemnifying Party, the Claimant shall waive any right to indemnity therefor by the Indemnifying Party and no amount in respect thereof shall be claimed as an Indemnity Loss under this ARTICLE VII and (e) the Indemnifying Party shall be entitled to settle such Proceeding with the consent of the Claimant, which will not be unreasonably withheld, conditioned or delayed or, if such settlement provides for release of the Claimant in connection with all matters relating to the Proceeding which have been asserted against the Claimant in such Proceeding by the other parties to such settlement, without the consent of the Claimant. Notwithstanding anything herein to the contrary, the Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Proceeding, shall not be entitled to settle or compromise any such Proceeding, and shall pay the reasonable fees and expenses of counsel retained by the Claimant, if (a) the Proceeding relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (b) the Proceeding seeks injunctive or equitable relief against the Claimant, or (c) the Indemnifying Party has not elected to defend or is failing to defend in good faith the Proceeding.

Defense of Third Person Claims. The Indemnifying If an Injured Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified Person hereunder) (“Third Person”), the Injured Party shall have twenty (20) calendar days after receipt give a Notice of the Litigation Notice Claim to notify the Claimant that it acknowledges its obligation to indemnify and hold harmless the Claimant with respect to the Indemnity Loss set forth in the Litigation Notice and that it elects to conduct and control any Proceeding with respect to an identifiable claim (the “Election Notice”). If the Indemnifying Party gives a Disagreement Notice (as hereinafter defined) or does not give within 30 days after such assertion is actually known to the foregoing Election Notice during such 20-day period, the Claimant shall have the right (but not the obligation) to defend, contest, settle or compromise such Proceeding in the exercise of its reasonable discretionInjured Party by written notice; provided, however, that the right of the Claimant a Person to indemnification be indemnified hereunder in respect of claims made by a Third Person shall not be conclusively established adversely affected by a failure to give such Notice of Claim unless, and then only to the extent that, an Indemnifying Party is prejudiced thereby. If the Indemnifying Party timely gives the foregoing Election Notice and provides information satisfactory to the Claimant in its reasonable discretion confirming the Indemnifying Party’s financial capacity to defend such Indemnity Loss and provide indemnification with respect to such Indemnity Loss, the The Indemnifying Party shall have the right right, upon written notice to undertakethe Injured Party, conduct and control, through using counsel reasonably satisfactory to the Claimant andInjured Party, subject to investigate, secure, contest, or settle the provisions set forth below, at the Indemnifying Party’s sole expense, the conduct and settlement of claim alleged by such Proceeding, and the Claimant shall cooperate with Third Person (a “Third Person Claim”) provided that the Indemnifying Party notified the Injured Party in connection therewithwriting of its election to indemnify the Injured Party with respect to such Third Person Claim; provided, however, and provided further that (a) the Indemnifying Party shall will not thereby consent to the imposition entry of any injunction against judgment with respect to the Claimant matter or enter into any settlement with respect to the matter without the prior written consent of the Claimant, Injured Party (bnot to be withheld or delayed unreasonably) the Indemnifying Party shall permit the Claimant to participate in such conduct or settlement through legal counsel chosen by the Claimant, but the fees and expenses of such legal counsel shall be borne by the Claimant unless (i) the Indemnifying Party shall have agreed in writing to the continuing participation of such counsel, or (ii) the named parties to any such Proceeding (including any impleaded parties) include both the Indemnifying Party and the Claimant and representation of both parties by the same counsel would, in the opinion of Claimant’s outside legal counsel, be inappropriate due to the actual or potential differing interests between them, (c) upon a final determination of such Proceeding, the Indemnifying Party shall promptly reimburse the Claimant, to the extent required under this ARTICLE VII, for the full amount of any Indemnity Loss incurred by the Claimant, except fees and expenses of legal counsel that the Claimant incurred after the assumption of the conduct and control of such Proceeding by the Indemnifying Party in good faith, (d) the Claimant shall have the right to pay or settle any such Proceeding; provided, however, that in the event of such payment or settlement which is not consented to by the Indemnifying Party, the Claimant shall waive any right to indemnity therefor by the Indemnifying Party and no amount in respect thereof shall be claimed as an Indemnity Loss under this ARTICLE VII and (e) the Indemnifying Party shall be entitled to settle such Proceeding with the consent of the Claimant, which will not be unreasonably withheld, conditioned or delayed or, if such to any judgment and/or enter into any settlement provides for release of the Claimant in connection with all matters relating to the Proceeding which have been asserted against the Claimant in such Proceeding by the other parties to such settlement, without the consent of the ClaimantInjured Party if such judgment or settlement requires only the payment of money (without admitting fault) and effective upon the payment by the Indemnifying Party of all such money due. Notwithstanding anything herein to For the contraryavoidance of doubt, a claim or challenge asserted by a governmental agency, including without limitation the IRS, the U.S. Department of Commerce or the U.S. Treasury Department, against an Injured Party shall be considered a Third Person Claim hereunder. The Injured Party may thereafter participate in (but not control) the defense of any such Third Person Claim with its own counsel at its own expense, except in the event of a conflict of interest, where the Indemnified Party can control and the Indemnifying Party must reimburse. For purposes of clarification, the fact that the Injured Party has sought indemnification from the Indemnified Party shall not be entitled to assume or maintain control considered in determining whether a conflict of the defense of any Proceeding, shall not be entitled to settle or compromise any such Proceeding, and shall pay the reasonable fees and expenses of counsel retained by the Claimant, if (a) the Proceeding relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (b) the Proceeding seeks injunctive or equitable relief against the Claimant, or (c) interest exists. If the Indemnifying Party has elects not elected to defend or is failing the Injured Party with respect to defend in good faith such Third Person Claim, the Proceeding.Injured Party shall have the right, at its option, to assume and control defense of the

Defense of Third Person Claims. The Indemnifying Party shall have twenty (20) calendar days after receipt of the Litigation Notice to notify the Claimant that it acknowledges its obligation to indemnify and hold harmless the Claimant with respect to the Indemnity Loss set forth in the Litigation Notice and that it elects to conduct and control or assume the defense of any Proceeding legal or administrative action or suit with respect to an identifiable claim (the “Election Notice”). If the Indemnifying Party gives a Disagreement Notice (as hereinafter defined) or does not give the foregoing Election Notice during such 20-day period, the Claimant shall have the right (but not the obligation) to defend, contest, settle or compromise such Proceeding in the exercise of its reasonable discretionProceeding; provided, however, that the right of the Claimant to indemnification hereunder shall not be conclusively established thereby. If the Indemnifying Party timely gives the foregoing Election Notice and provides information satisfactory to the Claimant in its reasonable discretion confirming the Indemnifying Party’s financial capacity to defend such Indemnity Loss and provide indemnification with respect to such Indemnity Loss, the Indemnifying Party shall have the right to undertake, conduct and control, through counsel reasonably satisfactory to the Claimant and, subject to the provisions set forth below, and at the Indemnifying Party’s sole expense, the conduct and settlement of such Proceedingaction or suit, and the Claimant shall cooperate in a commercially reasonable manner with the Indemnifying Party in connection therewith; provided, however, that (a) the Indemnifying Party shall not thereby consent to the imposition of settle any injunction against the Claimant legal proceeding without the prior written consent of the ClaimantClaimant unless such settlement involves solely the payment of money and does not include any admission of wrongdoing or equitable relief, in which case the consent of the Claimant shall not be unreasonably withheld, (b) the Indemnifying Party shall permit the Claimant to participate in such conduct or settlement through legal counsel chosen by the Claimant, but the fees and expenses of such legal counsel shall be borne by the Claimant unless Claimant, except as provided in clause (ic) the Indemnifying Party shall have agreed in writing to the continuing participation of such counsel, or (ii) the named parties to any such Proceeding (including any impleaded parties) include both the Indemnifying Party and the Claimant and representation of both parties by the same counsel would, in the opinion of Claimant’s outside legal counsel, be inappropriate due to the actual or potential differing interests between thembelow, (c) upon a final determination of such Proceedingaction or suit, the Indemnifying Party shall promptly reimburse the Claimant, to the extent required under this ARTICLE VIIArticle VIII, for the full amount of any Indemnity Loss incurred by the Claimant, except for the fees and expenses of legal counsel that the Claimant incurred after the assumption of the conduct and control of such Proceeding action or suit by the Indemnifying Party in good faithfaith (which fees and expenses shall be borne by the Claimant), and (d) the Claimant shall have the right to pay or settle any such Proceeding; provided, however, that in the event of such payment action or settlement which is not consented to by the Indemnifying Party, the Claimant shall waive any right to indemnity therefor by the Indemnifying Party and no amount in respect thereof shall be claimed as an Indemnity Loss under this ARTICLE VII and (e) the Indemnifying Party shall be entitled to settle such Proceeding with the consent of the Claimant, which will not be unreasonably withheld, conditioned or delayed or, if such settlement provides for release of the Claimant in connection with all matters relating to the Proceeding which have been asserted against the Claimant in such Proceeding by the other parties to such settlement, without the consent of the Claimant. Notwithstanding anything herein to the contrary, the Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Proceeding, shall not be entitled to settle or compromise any such Proceeding, and shall pay the reasonable fees and expenses of counsel retained by the Claimant, if (a) the Proceeding relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (b) the Proceeding seeks injunctive or equitable relief against the Claimant, or (c) the Indemnifying Party has not elected to defend or is failing to defend in good faith the Proceedingsuit.

Defense of Third Person Claims. The Indemnifying Party shall have twenty (20) calendar days after receipt of the Litigation Notice to notify the Claimant that it acknowledges its obligation to indemnify and hold harmless the Claimant If an indemnifying party receives a notice given in accordance with Section 9.3 with respect to the Indemnity Loss set forth in the Litigation Notice and that it elects to conduct and control any Proceeding with respect to an identifiable claim (the “Election Notice”). If the Indemnifying Party gives a Disagreement Notice (as hereinafter defined) third Person legal action or does not give the foregoing Election Notice during such 20-day periodclaim, the Claimant indemnifying party shall have the right (to conduct and control, through counsel of its own choosing, reasonably acceptable to the indemnified party, such third Person legal action or other claim, but not the obligation) to defendindemnified party may, contestat its election, settle or compromise such Proceeding participate in the exercise of defense thereof at its reasonable discretionsole cost and expense; provided, however, that if the right of the Claimant to indemnification hereunder indemnifying party shall not be conclusively established thereby. If the Indemnifying Party timely gives the foregoing Election Notice and provides information satisfactory to the Claimant in its reasonable discretion confirming the Indemnifying Party’s financial capacity fail to defend any such Indemnity Loss and provide indemnification with respect to such Indemnity Losslegal action or other claim, then the Indemnifying Party shall have the right to undertake, conduct and controlindemnified party may defend, through counsel reasonably satisfactory of its own choosing, such legal action or other claim, and (so long as it gives the indemnifying party at least fifteen (15) days' notice of the terms of the proposed settlement thereof and permits the indemnifying party to then undertake the Claimant and, subject defense thereof) settle such legal action or other claim and to recover the provisions set forth below, at the Indemnifying Party’s sole expense, the conduct and settlement amount of such Proceeding, settlement or of any judgment and the Claimant shall cooperate with the Indemnifying Party in connection therewith; provided, however, that (a) the Indemnifying Party reasonable costs and expenses of such defense. The indemnifying party shall not thereby consent to the imposition of compromise or settle any injunction against the Claimant such legal action or other claim without the prior written consent of the Claimantindemnified party, (b) the Indemnifying Party which consent shall permit the Claimant to participate in such conduct not unreasonably be withheld, delayed or settlement through legal counsel chosen by the Claimant, but the fees and expenses of such legal counsel shall be borne by the Claimant unless (i) the Indemnifying Party shall have agreed in writing to the continuing participation of such counsel, or (ii) the named parties to any such Proceeding (including any impleaded parties) include both the Indemnifying Party and the Claimant and representation of both parties by the same counsel would, in the opinion of Claimant’s outside legal counsel, be inappropriate due to the actual or potential differing interests between them, (c) upon a final determination of such Proceeding, the Indemnifying Party shall promptly reimburse the Claimant, to the extent required under this ARTICLE VII, for the full amount of any Indemnity Loss incurred by the Claimant, except fees and expenses of legal counsel that the Claimant incurred after the assumption of the conduct and control of such Proceeding by the Indemnifying Party in good faith, (d) the Claimant shall have the right to pay or settle any such Proceedingconditioned; provided, however, that in consent shall not be required if the event terms and conditions of such payment compromise or settlement which is not consented to proposed by the Indemnifying Party, the Claimant shall waive any right indemnifying party and agreed to indemnity therefor in writing by the Indemnifying Party and no amount claimant in respect thereof shall be claimed as an Indemnity Loss under this ARTICLE VII and such legal action or other claim (ethe "Settlement Proposal") the Indemnifying Party shall be entitled to settle such Proceeding with the consent of the Claimant, which will not be unreasonably withheld, conditioned or delayed or, if such settlement provides for (a) include a full release of the Claimant in connection with all matters relating to indemnified party from the Proceeding legal action or other claim which have been asserted against is the Claimant in such Proceeding by the other parties to such settlement, without the consent subject of the Claimant. Notwithstanding anything herein to the contrary, the Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Proceeding, shall not be entitled to settle or compromise any such Proceeding, and shall pay the reasonable fees and expenses of counsel retained by the Claimant, if (a) the Proceeding relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigationSettlement Proposal, (b) do not impose on the Proceeding seeks injunctive indemnified party any obligation or equitable relief against materially increase the Claimantindemnified party's risk of further proceedings, or and (c) if the Indemnifying Party has indemnified party is a Buyer Indemnified Party, do not elected include any term or condition which would restrict in any material manner the continued ownership or operations of the Subject Assets or the conduct of the Business as conducted by Seller prior to defend the Closing. No matter whether an indemnifying party defends or is failing prosecutes any third Person legal action or claim, the indemnified and indemnifying parties shall cooperate in the defense or prosecution thereof. Such cooperation shall include access during normal business hours afforded to defend the indemnifying party to, and reasonable retention by the indemnified party of, records and information which are reasonably relevant to such third Person legal action or claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder, and the indemnifying party shall reimburse the indemnified party for all of its reasonable out-of-pocket expenses in good faith the Proceedingconnection therewith.

Defense of Third Person Claims. With respect to any claims or demands by third parties as to which Bionik, on the one hand, or the Stockholders, on the other, may seek indemnification hereunder (the party seeking indemnification being referred to herein as the “Indemnified Party”), whenever the Indemnified Party will have received a written notice that such a claim or demand has been asserted or threatened, the Indemnified Party will promptly notify the Stockholders’ Representative, if indemnification is being sought under Section 6.2, or Bionik, if indemnification is sought under Section 6.3 (such Person being referred to herein as the “Indemnifying Party”) of such claim or demand and of the facts within the Indemnified Party’s knowledge that relate thereto within a reasonable time after receiving such written notice. The Indemnifying Party shall have twenty (20) calendar days after receipt of the Litigation Notice to notify the Claimant that it acknowledges its obligation to indemnify and hold harmless the Claimant with respect to the Indemnity Loss set forth in the Litigation Notice and that it elects to conduct and control any Proceeding with respect to an identifiable claim (the “Election Notice”). If the Indemnifying Party gives a Disagreement Notice (as hereinafter defined) or does not give the foregoing Election Notice during such 20-day period, the Claimant shall will then have the right (but not the obligation) to defend, contest, negotiate or settle any such claim or compromise such Proceeding in the exercise demand through counsel of his or its reasonable discretion; provided, however, that the right of the Claimant to indemnification hereunder own selection (who shall not be conclusively established thereby. If the Indemnifying Party timely gives the foregoing Election Notice and provides information satisfactory reasonably acceptable to the Claimant in its reasonable discretion confirming the Indemnifying Indemnified Party’s financial capacity to defend such Indemnity Loss and provide indemnification with respect to such Indemnity Loss, the Indemnifying Party shall have the right to undertake, conduct and control, through counsel reasonably satisfactory to the Claimant and, subject to the provisions set forth below), at the Indemnifying Party’s sole own cost and expense, the conduct and settlement of such Proceeding, and the Claimant Indemnified Party shall cooperate with and assist the Indemnifying Party in connection therewith; providedthe defense of such claim or demand. Notwithstanding the preceding sentence, however, that (a) the Indemnifying Party shall will not thereby consent settle, compromise, or offer to the imposition of settle or compromise any injunction against the Claimant such claim or demand without the prior written consent of the Claimant, (b) the Indemnifying Party shall permit the Claimant to participate in such conduct or settlement through legal counsel chosen by the Claimant, but the fees and expenses of such legal counsel shall be borne by the Claimant unless (i) the Indemnifying Party shall have agreed in writing to the continuing participation of such counsel, or (ii) the named parties to any such Proceeding (including any impleaded parties) include both the Indemnifying Party and the Claimant and representation of both parties by the same counsel would, in the opinion of Claimant’s outside legal counsel, be inappropriate due to the actual or potential differing interests between them, (c) upon a final determination of such Proceeding, the Indemnifying Party shall promptly reimburse the Claimant, to the extent required under this ARTICLE VII, for the full amount of any Indemnity Loss incurred by the Claimant, except fees and expenses of legal counsel that the Claimant incurred after the assumption of the conduct and control of such Proceeding by the Indemnifying Party in good faith, (d) the Claimant shall have the right to pay or settle any such Proceeding; provided, however, that in the event of such payment or settlement which is not consented to by the Indemnifying Indemnified Party, the Claimant shall waive any right to indemnity therefor by the Indemnifying Party and no amount in respect thereof shall be claimed as an Indemnity Loss under this ARTICLE VII and (e) the Indemnifying Party shall be entitled to settle such Proceeding with the which consent of the Claimant, which will not be unreasonably withheld, conditioned or delayed or, if such settlement provides for release of delayed. If the Claimant in connection with all matters relating Indemnifying Party gives notice to the Proceeding which Indemnified Party within twenty Business Days after the Indemnified Party has notified the Indemnifying Party that any such claim or demand has been made in writing, that the Indemnifying Party elects to have been asserted against the Claimant in Indemnified Party defend, contest, negotiate, or settle any such Proceeding by claim or demand, then the other parties Indemnified Party will have the right to contest and/or settle any such settlement, without the consent of the Claimant. Notwithstanding anything herein to the contrary, claim or demand and the Indemnifying Party shall not be entitled to assume or maintain control of cooperate with and assist the Indemnified Party in the defense of any Proceedingsuch claim or demand, shall provided, however, that the Indemnified Party will not be entitled settle, compromise, or offer to settle or compromise any such Proceeding, and shall pay claim or demand without the reasonable fees and expenses prior written consent (which may include a general or limited consent) of counsel retained by the Claimant, if (a) the Proceeding relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (b) the Proceeding seeks injunctive or equitable relief against the Claimant, or (c) the Indemnifying Party Party, which consent will not be unreasonably withheld, conditioned or delayed. In the event that the Stockholders’ Representative has not elected consented to defend any settlement, the Stockholders shall have no power or is failing authority to defend in good faith object under any provision of this Agreement to the Proceedingamount of such settlement.

Defense of Third Person Claims. The Indemnifying Party shall have twenty (20) calendar days after receipt of the Litigation Notice to notify the Claimant that it acknowledges its obligation to indemnify and hold harmless the Claimant with respect to the Indemnity Loss set forth in the Litigation Notice and that it elects to conduct and control any Proceeding with respect to an identifiable claim (the “"Election Notice”"). If the Indemnifying Party gives a Disagreement Notice (as hereinafter defined) or does not give the foregoing Election Notice during such twenty (20-) calendar day period, the Claimant shall have the right (but not the obligation) to defend, contest, settle or compromise such Proceeding action or suit in the exercise of its reasonable sole discretion; provided, however, that the right of the Claimant to indemnification hereunder shall not be conclusively established thereby. If the Indemnifying Party timely gives the foregoing Election Notice and provides information satisfactory to the Claimant in its reasonable sole discretion confirming the Indemnifying Party’s 's financial capacity to defend such Indemnity Loss and provide indemnification with respect to such Indemnity Loss, the Indemnifying Party shall have the right to undertake, conduct and control, through counsel reasonably satisfactory to the Claimant and, subject to the provisions set forth below, and at the Indemnifying Party’s 's sole expense, the conduct and settlement of such Proceeding, and the Claimant shall cooperate with the Indemnifying Party in connection therewith; provided, however, that (a) the Indemnifying Party shall not thereby consent to the imposition of any injunction against the Claimant without the prior written consent of the Claimant, (b) the Indemnifying Party shall permit the Claimant to participate in such conduct or settlement through legal counsel chosen by the Claimant, but the fees and expenses of such legal counsel shall be borne by the Claimant unless Claimant, except as provided in clause (ic) the Indemnifying Party shall have agreed in writing to the continuing participation of such counsel, or (ii) the named parties to any such Proceeding (including any impleaded parties) include both the Indemnifying Party and the Claimant and representation of both parties by the same counsel would, in the opinion of Claimant’s outside legal counsel, be inappropriate due to the actual or potential differing interests between thembelow, (c) upon a final determination of such Proceeding, the Indemnifying Party shall promptly reimburse the Claimant, to the extent required under this ARTICLE Article VII, for the full amount of any Indemnity Loss incurred by the Claimant, except fees and expenses of legal counsel that the Claimant incurred after the assumption of the conduct and control of such Proceeding by the Indemnifying Party in good faith, faith and (d) the Claimant shall have the right to pay or settle any such Proceeding; provided, however, that in the event of such payment or settlement which is not consented to by the Indemnifying Party, the Claimant shall waive any right to indemnity therefor by the Indemnifying Party and no amount in respect thereof shall be claimed as an Indemnity Loss under this ARTICLE VII and (e) the Indemnifying Party shall be entitled to settle such Proceeding with the consent of the Claimant, which will not be unreasonably withheld, conditioned or delayed or, if such settlement provides for release of the Claimant in connection with all matters relating to the Proceeding which have been asserted against the Claimant in such Proceeding by the other parties to such settlement, without the consent of the Claimant. Notwithstanding anything herein to the contrary, the Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Proceeding, shall not be entitled to settle or compromise any such Proceeding, and shall pay the reasonable fees and expenses of counsel retained by the Claimant, if (a) the Proceeding relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (b) the Proceeding seeks injunctive or equitable relief against the Claimant, or (c) the Indemnifying Party has not elected to defend or is failing to defend in good faith the Proceeding.

Defense of Third Person Claims. (i) The Indemnifying Party shall have twenty (20) 30 calendar days (or, to the extent possible, such shorter period as may be sufficient under the circumstances to give the Indemnifying Party a reasonable opportunity to respond) after receipt of the Litigation Notice to notify the Claimant that it acknowledges its obligation to indemnify and hold harmless the Claimant with respect to the Indemnity Loss set forth in the Litigation Notice and that it elects to undertake, conduct and assume control (through counsel of Indemnifying Party’s choice reasonably acceptable to Claimant) any Proceeding instituted by a third party with respect to an identifiable claim (the “Election Notice”). If ; provided¸ that, as a condition precedent to the Indemnifying Party’s right to assume control of such defense, the Indemnifying Party gives a Disagreement Notice must (as hereinafter definedA) or does not give the foregoing Election Notice during such 20-day period, the Claimant shall have the right (but not the obligation) first demonstrate to defend, contest, settle or compromise such Proceeding in the exercise of its reasonable discretion; provided, however, that the right of the Claimant to indemnification hereunder shall not be conclusively established thereby. If the Indemnifying Party timely gives the foregoing Election Notice and provides information satisfactory to the Claimant in its writing (1) reasonable discretion confirming evidence of the Indemnifying Party’s financial capacity ability to defend such Indemnity Loss and provide indemnification to the extent provided hereunder to the Claimant with respect to such Indemnity Lossthird party claim and (2) after giving effect to the application of the limitations in this ARTICLE VII, the Indemnifying Party shall have would be responsible for a greater portion of the right Losses related to undertakesuch third party claim than the Claimant, conduct and control, through counsel reasonably satisfactory (B) agree to provide indemnification to the Claimant and, subject to the provisions set forth below, at the Indemnifying Party’s sole expense, the conduct and settlement of such Proceeding, and the Claimant shall cooperate with the Indemnifying Party in connection therewithextent provided hereunder; provided, howeverfurther, that (a) the Indemnifying Party shall not thereby consent have the right to the imposition assume control of any injunction against the Claimant without the prior written consent of the Claimant, (b) the Indemnifying Party such defense and shall permit the Claimant to participate in such conduct or settlement through legal counsel chosen by the Claimant, but pay the fees and expenses of such legal counsel shall be borne retained by the Claimant unless (ito the extent required herein), if (1) the Indemnifying Party shall have agreed in writing to third party claim seeks an injunction or equitable relief, or relief for other than money damages against the continuing participation of such Claimant that the Claimant reasonably determines, after conferring with its outside counsel, or cannot be separated from any related claim for money damages, (ii2) the named third party claim involves criminal proceeding, action, indictment, allegation or investigation that could reasonably be expected to involve incarceration of Claimant, any of its affiliates or any of their respective Personnel, (3) the parties to any such Proceeding third party claim or threatened third party claim (including any impleaded parties) include both the Indemnifying Party and the Claimant and representation of both parties by the same counsel would, in the opinion of Claimant’s outside legal counsel, be inappropriate due to the actual or potential differing interests between them, (c) upon a final determination of such Proceeding, the Indemnifying Party shall promptly reimburse the Claimant, to the extent required under this ARTICLE VII, have been advised in writing by counsel for the full amount Claimant that there exists legal conflicts of any Indemnity Loss incurred by the Claimant, except fees and expenses interest pursuant to applicable rules of legal counsel that the Claimant incurred after the assumption of the professional conduct and control of such Proceeding by the Indemnifying Party in good faith, (d) the Claimant shall have the right to pay or settle any such Proceeding; provided, however, that in the event of such payment or settlement which is not consented to by the Indemnifying Party, the Claimant shall waive any right to indemnity therefor by between the Indemnifying Party and no amount in respect thereof shall be claimed as an Indemnity Loss under this ARTICLE VII and the Claimant, (e4) the Indemnifying Party shall be entitled failed or is failing to settle diligently prosecute or defend such Proceeding with the consent of the Claimantthird party claim, which will not be unreasonably withheld, conditioned or delayed or, if such settlement provides for release of the Claimant in connection with all matters relating to the Proceeding which have been asserted against the Claimant in such Proceeding by the other parties to such settlement, without the consent of the Claimant. Notwithstanding anything herein to the contrary, the Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Proceeding, shall not be entitled to settle or compromise any such Proceeding, and shall pay the reasonable fees and expenses of counsel retained by the Claimant, if (a5) the Proceeding third party claim relates to or arises in connection with any criminal proceedingenvironmental, action, indictment, allegation health or investigation, (b) the Proceeding seeks injunctive safety conditions or equitable relief against the Claimant, or (c) the Indemnifying Party has not elected to defend or is failing to defend in good faith the Proceedingmatters.

Defense of Third Person Claims. If an Injured Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an Injured Party hereunder) (a “Third Person”), the Injured Party shall give a Notice of Claim to the Indemnifying Party promptly after such assertion is actually known to the Injured Party. The Indemnifying Party shall have twenty (20) calendar days after receipt of the Litigation Notice to notify the Claimant that it acknowledges its obligation to indemnify and hold harmless the Claimant with respect right, upon written notice to the Indemnity Loss set forth in the Litigation Notice Injured Party, and that it elects to conduct and control any Proceeding with respect to an identifiable claim (the “Election Notice”). If the Indemnifying Party gives a Disagreement Notice (as hereinafter defined) or does not give the foregoing Election Notice during such 20-day period, the Claimant shall have the right (but not the obligation) to defend, contest, settle or compromise such Proceeding in the exercise of its reasonable discretion; provided, however, that the right of the Claimant to indemnification hereunder shall not be conclusively established thereby. If the Indemnifying Party timely gives the foregoing Election Notice and provides information satisfactory to the Claimant in its reasonable discretion confirming the Indemnifying Party’s financial capacity to defend such Indemnity Loss and provide indemnification with respect to such Indemnity Loss, the Indemnifying Party shall have the right to undertake, conduct and control, through using counsel reasonably satisfactory to the Claimant andInjured Party, subject to investigate, secure, contest, or settle the provisions set forth belowclaim alleged by such Third Person (a “Third Person Claim”), at the Indemnifying Party’s sole expense, the conduct and settlement of such Proceeding, and the Claimant shall cooperate with the Indemnifying Party in connection therewith; provided, however, provided that (a) the Indemnifying Party shall not thereby consent to the imposition of any injunction against the Claimant without the prior written consent of the Claimant, (b) the Indemnifying Party shall permit the Claimant to participate in such conduct or settlement through legal counsel chosen by the Claimant, but the fees and expenses of such legal counsel shall be borne by the Claimant unless (i) the Indemnifying Party shall have agreed notified the Injured Party in writing writing, within thirty (30) days after the Injured Party has given notice of the Third Person Claim, of the Indemnifying Party’s election to indemnify the continuing participation Injured Party with respect to such Third Person Claim and to assume the defense of such counselThird Person Claim, or (ii) the named parties Indemnifying Party provides the Injured Party with evidence reasonably acceptable to any the Injured Party of its financial capacity to defend such Proceeding Third Person Claim and fulfill its indemnification with respect to such Third Person Claim; (including any impleaded partiesiii) include both the Third Person Claim involves only money damages that are not in excess of one hundred percent (100%) of the amount for which the Indemnifying Party may be liable under this Agreement and the Claimant and representation of both parties by Third Person Claim does not seek an injunction or other equitable relief, (iv) settlement of, or an adverse judgment with respect to, the same counsel wouldThird Person Claim is not, in the opinion good faith judgment of Claimant’s outside legal counselthe Injured Party, be inappropriate due likely to establish a precedential custom or practice adverse to the actual or potential differing continuing business interests between themof the Injured Party, and (cv) upon a final determination of such Proceeding, the Indemnifying Party shall promptly reimburse conducts the Claimant, to the extent required under this ARTICLE VII, for the full amount of any Indemnity Loss incurred by the Claimant, except fees and expenses of legal counsel that the Claimant incurred after the assumption defense of the conduct Third Person Claim actively and control of such Proceeding by diligently; and provided further that the Indemnifying Party in good faith, (d) will not consent to the Claimant shall have entry of any judgment with respect to the right matter or enter into any settlement with respect to pay or settle any such Proceeding; provided, however, the matter without the written consent of the Injured Party except that in the event of such payment or settlement which is not consented to by the Indemnifying Party, the Claimant shall waive any right to indemnity therefor by the Indemnifying Party and no amount in respect thereof shall be claimed as an Indemnity Loss under this ARTICLE VII and (e) the Indemnifying Party shall be entitled to settle such Proceeding with the consent of the Claimant, which will not be unreasonably withheld, conditioned or delayed or, if such to any judgment and/or enter into any settlement provides for release of the Claimant in connection with all matters relating to the Proceeding which have been asserted against the Claimant in such Proceeding by the other parties to such settlement, without the consent of the Claimant. Notwithstanding anything herein Injured Party if such judgment or settlement requires only the payment of money, does not constitute an admission of any wrongdoing or a waiver of any rights of the Injured Party, in the good faith judgment of the Injured Party, is not likely to establish a precedential custom or practice adverse to the contrarycontinuing business interests of the Injured Party, and the Indemnifying Party is solely liable for the entire settlement amount. For the avoidance of doubt, a claim or challenge asserted by a Governmental or Licensing Authority, including the IRS or the U.S. Department of Commerce, against an Injured Party shall be considered a Third Person Claim hereunder. The Injured Party may thereafter participate in (but not be entitled to assume or maintain control of control) the defense of any Proceedingsuch Third Person Claim with its own counsel at its own expense, shall not be entitled to settle unless (A) there is a reasonable likelihood that a conflict of interest or compromise any such Proceeding, potential conflict of interest exists between the Indemnifying Party and shall pay the reasonable fees and expenses of counsel retained by the Claimant, if (a) the Proceeding relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigationInjured Party, (bB) there are legal defenses available to the Proceeding seeks injunctive Injured Party that are different from or equitable relief against additional to those available to the ClaimantIndemnifying Party, or (cC) the Indemnifying Party has elects not elected to defend or the Injured Party with respect to such Third Person Claim, the Injured Party shall have the right, at its option, to assume and control the defense of the Third Person Claim, in such manner as it may deem appropriate, including settling such claim, after giving written notice of the same to the Indemnifying Party, on such terms as the Injured Party may deem appropriate, and such representation shall be at the expense of the Indemnifying Party, provided that the Injured Party shall not choose any counsel who is failing objectionable to the Indemnifying Party’s insurance company, if such company has agreed to provide coverage for such third party claim. The failure of the Indemnifying Party to respond in writing to the Notice of Claim within thirty (30) days after receipt thereof shall be deemed an election not to defend the same. The Parties shall make available to each other all relevant information in good faith their possession relating to any such Third Person Claim and shall cooperate in the Proceedingdefense thereof, provided, however, that any confidential or privileged materials will not be disclosed by the Injured Party other than as needed for such defense, and the Indemnifying Party agrees to enter into a commercially reasonable confidentiality and non-use agreement with the Injured Party with respect to such information.

Defense of Third Person Claims. (a) The Indemnifying Party shall have twenty (20) 30 calendar days (or, to the extent possible, such shorter period as may be sufficient under the circumstances to give the Indemnifying Party a reasonable opportunity to respond) after receipt of the Litigation Notice to notify the Claimant that it acknowledges its obligation to indemnify and hold harmless the Claimant with respect to the Indemnity Loss set forth in the Litigation Notice and that it elects to undertake, conduct and assume control (through counsel of Indemnifying Party’s choice reasonably acceptable to Claimant) any Proceeding instituted by a third party with respect to an identifiable claim (the “Election Notice”). If ; provided¸ that, as a condition precedent to the Indemnifying Party’s right to assume control of such defense, the Indemnifying Party gives a Disagreement Notice must (as hereinafter definedA) or does not give the foregoing Election Notice during such 20-day period, the Claimant shall have the right (but not the obligation) first demonstrate to defend, contest, settle or compromise such Proceeding in the exercise of its reasonable discretion; provided, however, that the right of the Claimant to indemnification hereunder shall not be conclusively established thereby. If the Indemnifying Party timely gives the foregoing Election Notice and provides information satisfactory to the Claimant in its writing (1) reasonable discretion confirming evidence of the Indemnifying Party’s financial capacity ability to defend such Indemnity Loss and provide indemnification to the extent provided hereunder to the Claimant with respect to such Indemnity Lossthird party claim and (2) after giving effect to the application of the limitations in this Article 9, the Indemnifying Party shall have would be responsible for a greater portion of the right Losses related to undertakesuch third party claim than the Claimant, conduct and control, through counsel reasonably satisfactory (B) agree to provide indemnification to the Claimant and, subject to the provisions set forth below, at the Indemnifying Party’s sole expense, the conduct and settlement of such Proceeding, and the Claimant shall cooperate with the Indemnifying Party in connection therewithextent provided hereunder; provided, howeverfurther, that (a) the Indemnifying Party shall not thereby consent have the right to the imposition assume control of any injunction against the Claimant without the prior written consent of the Claimant, (b) the Indemnifying Party such defense and shall permit the Claimant to participate in such conduct or settlement through legal counsel chosen by the Claimant, but pay the fees and expenses of such legal counsel shall be borne retained by the Claimant unless (ito the extent required herein), if (1) the Indemnifying Party shall have agreed in writing to third party claim seeks an injunction or equitable relief, or relief for other than money damages against the continuing participation of such Claimant that the Claimant reasonably determines, after conferring with its outside counsel, or cannot be separated from any related claim for money damages, (ii2) the named third party claim involves criminal proceeding, action, indictment, allegation or investigation that could reasonably be expected to involve incarceration of Claimant, any of its Affiliates or any of their respective Personnel, (3) the parties to any such Proceeding third party claim or threatened third party claim (including any impleaded parties) include both the Indemnifying Party and the Claimant and representation of both parties by the same counsel would, in the opinion of Claimant’s outside legal counsel, be inappropriate due to the actual or potential differing interests between them, (c) upon a final determination of such Proceeding, the Indemnifying Party shall promptly reimburse the Claimant, to the extent required under this ARTICLE VII, have been advised in writing by counsel for the full amount Claimant that there exists legal conflicts of any Indemnity Loss incurred by the Claimant, except fees and expenses interest pursuant to applicable rules of legal counsel that the Claimant incurred after the assumption of the professional conduct and control of such Proceeding by the Indemnifying Party in good faith, (d) the Claimant shall have the right to pay or settle any such Proceeding; provided, however, that in the event of such payment or settlement which is not consented to by the Indemnifying Party, the Claimant shall waive any right to indemnity therefor by between the Indemnifying Party and no amount in respect thereof shall be claimed as an Indemnity Loss under this ARTICLE VII and the Claimant, (e4) the Indemnifying Party shall be entitled failed or is failing to settle diligently prosecute or defend such Proceeding with the consent of the Claimantthird party claim, which will not be unreasonably withheld, conditioned or delayed or, if such settlement provides for release of the Claimant in connection with all matters relating to the Proceeding which have been asserted against the Claimant in such Proceeding by the other parties to such settlement, without the consent of the Claimant. Notwithstanding anything herein to the contrary, the Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Proceeding, shall not be entitled to settle or compromise any such Proceeding, and shall pay the reasonable fees and expenses of counsel retained by the Claimant, if (a5) the Proceeding third party claim relates to or arises in connection with any criminal proceedingenvironmental, action, indictment, allegation health or investigation, (b) the Proceeding seeks injunctive safety conditions or equitable relief against the Claimant, or (c) the Indemnifying Party has not elected to defend or is failing to defend in good faith the Proceeding.matters. 49

Defense of Third Person Claims. The Indemnifying Party shall have twenty ten (2010) calendar days after receipt of the Litigation Claim Notice to notify the Claimant that it acknowledges its obligation to indemnify and hold harmless the Claimant with respect to the Indemnity Loss Indemnifiable Losses set forth in the Litigation Claim Notice and that it elects to conduct and control any Proceeding with respect to an identifiable claim (the “Election Notice”). If the Indemnifying Party gives a Disagreement Notice (as hereinafter defined) or does not give the foregoing Election Notice during such 2010-day period, the Claimant shall have the right (but not the obligation) to defend, contest, settle or compromise such Proceeding in the exercise of its reasonable discretion; provided, however, that the right of the Claimant to indemnification hereunder shall not be conclusively established thereby. If the Indemnifying Party timely gives the foregoing Election Notice and provides information satisfactory to the Claimant in its reasonable discretion confirming the Indemnifying Party’s financial capacity to defend such Indemnity Loss Indemnifiable Losses and provide indemnification with respect to such Indemnity LossIndemnifiable Losses, the Indemnifying Party shall have the right to undertake, conduct and control, through counsel reasonably satisfactory to the Claimant and, subject to the provisions set forth below, at the Indemnifying Party’s sole expense, the conduct and settlement of such Proceeding, including, but limited to, controlling all negotiations, litigation, arbitration, settlements, compromises and appeals of any claim, and the Claimant shall cooperate with the Indemnifying Party in connection therewith; provided, however, that (a) the Indemnifying Party shall not (i) thereby consent to the imposition of any injunction against the Claimant without the prior written consent of the Claimant or (ii) agree to any settlement involving any Claimant that contains any element other than the payment of money and complete indemnification and an unconditional release of the Claimant without the prior written consent of the affected Claimant, (b) the Indemnifying Party shall permit the Claimant to participate in such conduct or settlement through legal counsel chosen by the Claimant, but the fees and expenses of such legal counsel shall be borne by the Claimant unless (i) the Indemnifying Party shall have agreed in writing to the continuing participation of such counsel, or (ii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, (iii) the named parties to any such Proceeding (including any impleaded parties) include both the Indemnifying Party and the Claimant and representation of both parties by the same counsel would, in the opinion of Claimant’s outside legal counsel, be inappropriate due to the actual or potential differing interests between them, or (iv) the Claimant has reasonably concluded (based upon advice of counsel to the Claimant) that there may be legal defenses available to it or other indemnified parties that are different from or in addition to those available to the Indemnifying Party, (c) upon a final determination of such Proceeding, the Indemnifying Party shall promptly reimburse the Claimant, to the extent required under this ARTICLE VIIArticle III, for the full amount of any Indemnity Loss Indemnifiable Losses incurred by the Claimant, except fees and expenses of legal counsel that the Claimant incurred after the assumption of the conduct and control of such Proceeding by the Indemnifying Party in good faith, (d) the Claimant shall have the right to pay or settle any such Proceeding; providedprovided Claimant has presented such settlement proposal to the Indemnifying Party and if the Indemnifying Party fails to respond to such proposal within the time frame requested, but in any event, within five Business Days of receipt of such proposal, the Indemnifying Party shall be deemed to have consented to such settlement proposal; provided however, that in the event of such payment or settlement which is not consented to or deemed to have been consented to by the Indemnifying Party, the Claimant shall waive any right to indemnity therefor by the Indemnifying Party and no amount in respect thereof shall be claimed as an Indemnity Loss Indemnifiable Losses under this ARTICLE VII Article III and (e) the Indemnifying Party shall be entitled to settle such Proceeding with the consent of the Claimant, which will not be unreasonably withheld, conditioned or delayed or, if Claimant provided that such settlement provides for release of (i) includes a provision unconditionally releasing the Claimant from all liability in respect of claims by any releasing party related to or arising out of any transactions or conduct in connection with all matters relating therewith and (ii) does not include a statement as to the Proceeding which have been asserted against the Claimant in or admission of, fault, culpability or a failure to act by or on behalf of any such Proceeding by the other parties to such settlement, without the consent of the Claimant. Notwithstanding anything herein to the contrary, the Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Proceeding, shall not be entitled to settle or compromise any such Proceeding, and shall pay the reasonable fees and expenses of counsel retained by the Claimant, if (a) the Proceeding relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (b) the Proceeding seeks injunctive or equitable relief against the Claimant, or (c) the Indemnifying Party has not elected to defend or is failing to defend in good faith the Proceeding.

Defense of Third Person Claims. The Indemnifying Party shall have twenty (20) calendar days Business Days after receipt of the Litigation Notice to notify the Claimant in writing that it acknowledges its obligation to indemnify and hold harmless the Claimant with respect to the Indemnity Loss set forth in the Litigation Notice and that it elects to conduct and control any Proceeding with respect to an identifiable claim (the “Election Notice”). If the Indemnifying Party gives a Disagreement Notice (as hereinafter defined) or does not give the foregoing Election Notice during such twenty (20-day ) Business Day period, the Claimant shall have the right (but not the obligation) to defend, contest, settle or compromise such Proceeding in the exercise of its reasonable discretion; provided, however, that the right of the Claimant to indemnification hereunder shall not be conclusively established thereby. If the Indemnifying Party timely gives the foregoing Election Notice and provides information satisfactory to the Claimant in its reasonable discretion confirming the Indemnifying Party’s financial capacity to defend defend, contest, settle or compromise such Indemnity Loss Proceeding and provide indemnification with respect to such Indemnity Loss, the Indemnifying Party shall have the right to undertake, conduct and control, through counsel reasonably satisfactory to the Claimant and, subject to the provisions set forth below, and at the Indemnifying Party’s sole expense, the conduct and defense, contest, settlement or compromise of such Proceeding, and the Claimant shall cooperate with the Indemnifying Party in connection therewith; provided, however, that (a) the Indemnifying Party shall not thereby consent to the imposition of any injunction against the Claimant without the prior written consent of the Claimant, (b) the Indemnifying Party shall permit the Claimant to participate in such conduct defense, contest, settlement or settlement compromise through legal counsel chosen by the Claimant, but the fees and expenses of such legal counsel shall be borne by the Claimant unless Claimant, except as provided in clause (ic) the Indemnifying Party shall have agreed in writing to the continuing participation of such counsel, or (ii) the named parties to any such Proceeding (including any impleaded parties) include both the Indemnifying Party and the Claimant and representation of both parties by the same counsel would, in the opinion of Claimant’s outside legal counsel, be inappropriate due to the actual or potential differing interests between thembelow, (c) upon a final determination of such Proceeding, the Indemnifying Party shall promptly reimburse the Claimant, to the extent required under this ARTICLE VIIArticle 8, for the full amount of any Indemnity Loss incurred by the Claimant, except for the fees and expenses of legal counsel that the Claimant incurred after the assumption of the conduct and control of such Proceeding by the Indemnifying Party in good faithfaith (which fees and expenses shall be borne by the Claimant), and (d) the Claimant shall have the right to pay or settle any such Proceeding; provided, however, that in the event of such payment or settlement which is not consented to by the Indemnifying Partysettlement, the Claimant shall waive any right to indemnity therefor by the Indemnifying Party and no amount in respect thereof shall be claimed as an Indemnity Loss under this ARTICLE VII Article 8. Notwithstanding any other provision of this Agreement to the contrary, if any Third Person Claim relating to the Assets or the Assumed Liabilities is brought or instituted and (e) the Claimant gives a Litigation Notice to the Indemnifying Party shall with respect thereto, Claimant will have the sole and exclusive right to conduct and control such Third Person Claim in a commercially reasonable manner through counsel of its choosing. The Indemnifying Party will be entitled to settle such Proceeding participate in the Third Person Claim as described herein, provided that the Indemnifying Party acknowledges its obligation to indemnify the Claimant in accordance with the consent terms contained in Article 8 (including reasonable expenses of counsel and other reasonable expenses of the Third Person Claim) and it reimburses the Claimant for any amount paid to any Governmental Entity in order to pursue a contest of the Third Person Claim. The Indemnifying Party will have the right to employ, at its own expense, separate counsel, such counsel to be reasonably satisfactory to the Claimant, in any such Proceeding and participate in its defence. Such participation will be strictly limited to being kept informed of the status of the Third Person Claim by counsel to Purchaser, to reviewing any proposed written communications and other documents to be submitted to the relevant Governmental Entity or filed with a court, arbitrator or mediator in respect of the Third Person Claim and to receiving copies of any correspondence received from any Governmental Entity, party to such Third Person Claim, court, arbitrator or mediator relating to such Third Person Claim, except that no compromise or settlement of any Third Person Claim or claims relating to the Assets or the Assumed Liabilities may be made by the Claimant without the Indemnifying Party’s consent, which will consent may not be unreasonably withheld, conditioned or delayed or, if such settlement provides for release of the Claimant in connection with all matters relating to the Proceeding which have been asserted against the Claimant in such Proceeding by the other parties to such settlement, without the consent of the Claimant. Notwithstanding anything herein to the contrary, the Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Proceeding, shall not be entitled to settle or compromise any such Proceeding, and shall pay the reasonable fees and expenses of counsel retained by the Claimant, if (a) the Proceeding relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (b) the Proceeding seeks injunctive or equitable relief against the Claimant, or (c) the Indemnifying Party has not elected to defend or is failing to defend in good faith the Proceeding.

Defense of Third Person Claims. The Indemnifying Party shall have twenty (20) calendar days after receipt of the Litigation Notice to notify the Claimant that it acknowledges its obligation to indemnify and hold harmless the Claimant with respect to the Indemnity Loss set forth in the Litigation Notice and that it elects to conduct and control any Proceeding with respect to an identifiable claim (the “Election Notice”). If the Indemnifying Party gives a Disagreement Notice (as hereinafter defined) or does not give the foregoing Election Notice during such 20-day period, the Claimant indemnifying party shall have the right (to conduct and control, through counsel of its own choosing, reasonably acceptable to the indemnified party, any third Person legal action or other claim, but not the obligation) to defendindemnified party may, contestat its election, settle or compromise such Proceeding participate in the exercise of defense thereof at its reasonable discretionsole cost and expense; provided, however, that if the right of the Claimant to indemnification hereunder indemnifying party shall not be conclusively established thereby. If the Indemnifying Party timely gives the foregoing Election Notice and provides information satisfactory to the Claimant in its reasonable discretion confirming the Indemnifying Party’s financial capacity fail to defend any such Indemnity Loss and provide indemnification with respect to such Indemnity Losslegal action or other claim, then the Indemnifying Party shall have the right to undertake, conduct and controlindemnified party may defend, through counsel reasonably satisfactory of its own choosing, such legal action or other claim, and (so long as it gives the indemnifying party at least twenty (20) days’ notice of the terms of the proposed settlement thereof and permits the indemnifying party to then undertake the Claimant and, subject defense thereof) settle such legal action or other claim and to recover the provisions set forth below, at the Indemnifying Party’s sole expense, the conduct and settlement amount of such Proceeding, settlement or of any judgment and the Claimant shall cooperate with the Indemnifying Party in connection therewith; provided, however, that (a) the Indemnifying Party reasonable costs and expenses of such defense. The indemnifying party shall not thereby consent to the imposition of compromise or settle any injunction against the Claimant such legal action or other claim without the prior written consent of the Claimantindemnified party, which consent shall not unreasonably be withheld, delayed or conditioned if the terms and conditions of such compromise or settlement proposed by the indemnifying party and agreed to in writing by the claimant in such legal action or other claim (the “Settlement Proposal”) (a) include a full release of the indemnified party from the legal action or other claim which is the subject of the Settlement Proposal, and (b) if the Indemnifying Party indemnified party is a Buyer Indemnified Party, do not include any term or condition which would restrict in any material manner the continued ownership or operations of the Subject Assets or the conduct of the Business in substantially the manner then being owned, operated and conducted by Buyer (or any successor or assign). No matter whether an indemnifying party defends or prosecutes any third Person legal action or claim, the indemnified and indemnifying parties shall permit cooperate in the Claimant defense or prosecution thereof. Such cooperation shall include access during normal business hours afforded to participate in such conduct or settlement through legal counsel chosen the indemnifying party to, and reasonable retention by the Claimantindemnified party of, but the fees records and expenses information which are reasonably relevant to such third Person legal action or claim, and making employees available on a mutually convenient basis to provide additional information and explanation of such legal counsel shall be borne by the Claimant unless (i) the Indemnifying Party shall have agreed in writing to the continuing participation of such counselany material provided hereunder, or (ii) the named parties to any such Proceeding (including any impleaded parties) include both the Indemnifying Party and the Claimant and representation of both parties by the same counsel would, in the opinion of Claimant’s outside legal counsel, be inappropriate due to the actual or potential differing interests between them, (c) upon a final determination of such Proceeding, the Indemnifying Party indemnifying party shall promptly reimburse the Claimant, to the extent required under this ARTICLE VII, indemnified party for the full amount of any Indemnity Loss incurred by the Claimant, except fees and all its reasonable out-of-pocket expenses of legal counsel that the Claimant incurred after the assumption of the conduct and control of such Proceeding by the Indemnifying Party in good faith, (d) the Claimant shall have the right to pay or settle any such Proceeding; provided, however, that in the event of such payment or settlement which is not consented to by the Indemnifying Party, the Claimant shall waive any right to indemnity therefor by the Indemnifying Party and no amount in respect thereof shall be claimed as an Indemnity Loss under this ARTICLE VII and (e) the Indemnifying Party shall be entitled to settle such Proceeding with the consent of the Claimant, which will not be unreasonably withheld, conditioned or delayed or, if such settlement provides for release of the Claimant in connection with all matters relating to the Proceeding which have been asserted against the Claimant in such Proceeding by the other parties to such settlement, without the consent of the Claimant. Notwithstanding anything herein to the contrary, the Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Proceeding, shall not be entitled to settle or compromise any such Proceeding, and shall pay the reasonable fees and expenses of counsel retained by the Claimant, if (a) the Proceeding relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (b) the Proceeding seeks injunctive or equitable relief against the Claimant, or (c) the Indemnifying Party has not elected to defend or is failing to defend in good faith the Proceedingtherewith.

Defense of Third Person Claims. The Indemnifying Party shall have twenty (20) calendar days after receipt of the Litigation Notice to notify the Claimant that it acknowledges its obligation to indemnify and hold harmless the Claimant with respect to the Indemnity Loss set forth in the Litigation Notice and that it elects to conduct and control any Proceeding legal or administrative action or suit with respect to an identifiable claim (the “Election Notice”). If the Indemnifying Party gives a Disagreement Notice (as hereinafter defined) or does not give the foregoing Election Notice during such 20-day period, the Claimant shall have the right (but not the obligation) to defend, contest, settle or compromise such Proceeding in the exercise of its reasonable discretion; provided, however, that the right of the Claimant to indemnification hereunder shall not be conclusively established thereby. If the Indemnifying Party timely gives the foregoing Election Notice and provides information satisfactory to the Claimant in its reasonable discretion confirming the Indemnifying Party’s financial capacity to defend such Indemnity Loss and provide indemnification with respect to such Indemnity Loss, the Indemnifying Party shall have the right to undertake, conduct and control, through counsel reasonably satisfactory to the Claimant and, subject to the provisions set forth below, and at the Indemnifying Party’s sole expense, the conduct and settlement of such Proceedingaction or suit, and the Claimant shall cooperate with the Indemnifying Party in connection therewith; provided, however, that (a) the Indemnifying Party shall not thereby consent to the imposition of any injunction against the Claimant without the prior written consent of the Claimant, (b) the Indemnifying Party shall permit the Claimant to participate in such conduct or settlement through legal counsel chosen by the Claimant, but the fees and expenses of such legal counsel shall be borne by the Claimant unless Claimant, except as provided in clause (ic) the Indemnifying Party shall have agreed in writing to the continuing participation of such counsel, or (ii) the named parties to any such Proceeding (including any impleaded parties) include both the Indemnifying Party and the Claimant and representation of both parties by the same counsel would, in the opinion of Claimant’s outside legal counsel, be inappropriate due to the actual or potential differing interests between thembelow, (c) upon a final determination of such Proceedingaction or suit, the Indemnifying Party shall promptly reimburse the Claimant, to the extent required under this ARTICLE Article VII, for the full amount of any Indemnity Loss incurred by the Claimant, except for the fees and expenses of legal counsel that the Claimant incurred after the assumption of the conduct and control of such Proceeding action or suit by the Indemnifying Party in good faithfaith (which fees and expenses shall be borne by the Claimant), and (d) the Claimant shall have the right to pay or settle any such Proceedingaction or suit; provided, however, that in the event of such payment or settlement which is not consented to by the Indemnifying Partysettlement, the Claimant shall waive any right to indemnity therefor by the Indemnifying Party and no amount in respect thereof shall be claimed as an Indemnity Loss under this ARTICLE VII and (e) the Indemnifying Party shall be entitled to settle such Proceeding with the consent of the Claimant, which will not be unreasonably withheld, conditioned or delayed or, if such settlement provides for release of the Claimant in connection with all matters relating to the Proceeding which have been asserted against the Claimant in such Proceeding by the other parties to such settlement, without the consent of the Claimant. Notwithstanding anything herein to the contrary, the Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Proceeding, shall not be entitled to settle or compromise any such Proceeding, and shall pay the reasonable fees and expenses of counsel retained by the Claimant, if (a) the Proceeding relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (b) the Proceeding seeks injunctive or equitable relief against the Claimant, or (c) the Indemnifying Party has not elected to defend or is failing to defend in good faith the ProceedingArticle VII.

Defense of Third Person Claims. The Indemnifying Party shall have twenty (20) calendar days after receipt of the Litigation Notice to notify the Claimant that it acknowledges its obligation to indemnify and hold harmless the Claimant with respect to the Indemnity Loss set forth in the Litigation Notice and that it elects to conduct and control any Proceeding with respect to an identifiable claim (the “Election Notice”). If the Indemnifying Party gives a Disagreement Notice (as hereinafter defined) or does not give the foregoing Election Notice during such 20-day period, the Claimant indemnifying party shall have the right (to conduct and control, through counsel of its own choosing, reasonably acceptable to the indemnified party, any third Person legal action or other claim, but not the obligation) to defendindemnified party may, contestat its election, settle or compromise such Proceeding participate in the exercise of defense thereof at its reasonable discretionsole cost and expense; provided, however, that if the right of the Claimant to indemnification hereunder indemnifying party shall not be conclusively established thereby. If the Indemnifying Party timely gives the foregoing Election Notice and provides information satisfactory to the Claimant in its reasonable discretion confirming the Indemnifying Party’s financial capacity fail to defend any such Indemnity Loss and provide indemnification with respect to such Indemnity Losslegal action or other claim, then the Indemnifying Party shall have the right to undertake, conduct and controlindemnified party may defend, through counsel reasonably satisfactory of its own choosing, such legal action or other claim, and (so long as it gives the indemnifying party at least fifteen (15) days’ notice of the terms of the proposed settlement thereof and permits the indemnifying party to then undertake the Claimant and, subject defense thereof) settle such legal action or other claim and to recover the provisions set forth below, at the Indemnifying Party’s sole expense, the conduct and settlement amount of such Proceeding, settlement or of any judgment and the Claimant shall cooperate with the Indemnifying Party in connection therewith; provided, however, that (a) the Indemnifying Party reasonable costs and expenses of such defense. The indemnifying party shall not thereby consent to the imposition of compromise or settle any injunction against the Claimant such legal action or other claim without the prior written consent of the Claimantindemnified party, which consent shall not unreasonably be withheld, delayed or conditioned if the terms and conditions of such compromise or settlement proposed by the indemnifying party and agreed to in writing by the claimant in such legal action or other claim (the “Settlement Proposal”) (a) include a full release of the indemnified party from the legal action or other claim which is the subject of the Settlement Proposal, and (b) if the Indemnifying Party indemnified party is a Buyer Indemnified Party, do not include any term or condition which would restrict in any material manner the continued ownership or operations of the Subject Contracts or the conduct of the Business in substantially the manner then being owned, operated and conducted by Buyer (or any successor or assign). No matter whether an indemnifying party defends or prosecutes any third Person legal action or claim, the indemnified and indemnifying parties shall permit cooperate in the Claimant defense or prosecution thereof. Such cooperation shall include access during normal business hours afforded to participate in such conduct or settlement through legal counsel chosen the indemnifying party to, and reasonable retention by the Claimantindemnified party of, but records and information which are reasonably relevant to Confidential Information Redacted and Filed Separately with the fees Commission. Omitted Portions Indicated by [**]. Confidential Treatment Requested by HyperFeed Technologies, Inc. such third Person legal action or claim, and expenses making employees available on a mutually convenient basis to provide additional information and explanation of such legal counsel shall be borne by the Claimant unless (i) the Indemnifying Party shall have agreed in writing to the continuing participation of such counselany material provided hereunder, or (ii) the named parties to any such Proceeding (including any impleaded parties) include both the Indemnifying Party and the Claimant and representation of both parties by the same counsel would, in the opinion of Claimant’s outside legal counsel, be inappropriate due to the actual or potential differing interests between them, (c) upon a final determination of such Proceeding, the Indemnifying Party indemnifying party shall promptly reimburse the Claimant, to the extent required under this ARTICLE VII, indemnified party for the full amount of any Indemnity Loss incurred by the Claimant, except fees and all its reasonable out-of-pocket expenses of legal counsel that the Claimant incurred after the assumption of the conduct and control of such Proceeding by the Indemnifying Party in good faith, (d) the Claimant shall have the right to pay or settle any such Proceeding; provided, however, that in the event of such payment or settlement which is not consented to by the Indemnifying Party, the Claimant shall waive any right to indemnity therefor by the Indemnifying Party and no amount in respect thereof shall be claimed as an Indemnity Loss under this ARTICLE VII and (e) the Indemnifying Party shall be entitled to settle such Proceeding with the consent of the Claimant, which will not be unreasonably withheld, conditioned or delayed or, if such settlement provides for release of the Claimant in connection with all matters relating to the Proceeding which have been asserted against the Claimant in such Proceeding by the other parties to such settlement, without the consent of the Claimant. Notwithstanding anything herein to the contrary, the Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Proceeding, shall not be entitled to settle or compromise any such Proceeding, and shall pay the reasonable fees and expenses of counsel retained by the Claimant, if (a) the Proceeding relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (b) the Proceeding seeks injunctive or equitable relief against the Claimant, or (c) the Indemnifying Party has not elected to defend or is failing to defend in good faith the Proceedingtherewith.

Defense of Third Person Claims. The Indemnifying If an Injured Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an Indemnified Person hereunder) (a “Third Person”), the Injured Party shall have twenty (20) calendar days after receipt give a Notice of the Litigation Notice Claim to notify the Claimant that it acknowledges its obligation to indemnify and hold harmless the Claimant with respect to the Indemnity Loss set forth in the Litigation Notice and that it elects to conduct and control any Proceeding with respect to an identifiable claim (the “Election Notice”). If the Indemnifying Party gives a Disagreement Notice (as hereinafter defined) or does not give promptly after such assertion is actually known to the foregoing Election Notice during such 20-day period, the Claimant shall have the right (but not the obligation) to defend, contest, settle or compromise such Proceeding in the exercise of its reasonable discretionInjured Party; provided, however, that no delay or deficiency on the right part of the Claimant to indemnification hereunder Injured Party in delivering a Notice of Claim shall not be conclusively established thereby. If relieve the Indemnifying Party timely gives the foregoing Election Notice of any Liability hereunder unless (and provides information satisfactory solely to the Claimant in its reasonable discretion confirming extent) the Indemnifying Party’s financial capacity to defend Party is prejudiced by such Indemnity Loss and provide indemnification with respect to such Indemnity Lossdelay, the deficiency or failure. The Indemnifying Party shall have the right right, upon written notice to undertakethe Injured Party within thirty (30) days of receipt by the Indemnifying Party of the Notice of Claim, conduct and control, through using counsel reasonably satisfactory to the Claimant andInjured Party, subject to investigate, secure, contest, or settle the provisions set forth below, at the Indemnifying Party’s sole expense, the conduct and settlement of claim alleged by such Proceeding, and the Claimant shall cooperate with Third Person (a “Third Person Claim”); provided that the Indemnifying Party has notified the Injured Party in connection therewithwriting of its election to indemnify the Injured Party with respect to such Third Person Claim; provided, however, and provided further that (a) the Indemnifying Party shall will not thereby consent to the imposition entry of any injunction against judgment with respect to the Claimant matter or enter into any settlement with respect to the matter without the prior written consent of the Claimant, Injured Party (b) the Indemnifying Party shall permit the Claimant not to participate in such conduct be withheld or settlement through legal counsel chosen by the Claimant, but the fees and expenses of such legal counsel shall be borne by the Claimant unless (i) the Indemnifying Party shall have agreed in writing to the continuing participation of such counsel, or (ii) the named parties to any such Proceeding (including any impleaded parties) include both the Indemnifying Party and the Claimant and representation of both parties by the same counsel would, in the opinion of Claimant’s outside legal counsel, be inappropriate due to the actual or potential differing interests between them, (c) upon a final determination of such Proceeding, the Indemnifying Party shall promptly reimburse the Claimant, to the extent required under this ARTICLE VII, for the full amount of any Indemnity Loss incurred by the Claimantdelayed unreasonably), except fees and expenses of legal counsel that the Claimant incurred after the assumption of the conduct and control of such Proceeding by the Indemnifying Party in good faith, (d) the Claimant shall have the right to pay or settle any such Proceeding; provided, however, that in the event of such payment or settlement which is not consented to by the Indemnifying Party, the Claimant shall waive any right to indemnity therefor by the Indemnifying Party and no amount in respect thereof shall be claimed as an Indemnity Loss under this ARTICLE VII and (e) the Indemnifying Party shall be entitled to settle such Proceeding with the consent of the Claimant, which will not be unreasonably withheld, conditioned or delayed or, if such to any judgment and/or enter into any settlement provides for release of the Claimant in connection with all matters relating to the Proceeding which have been asserted against the Claimant in such Proceeding by the other parties to such settlement, without the consent of the ClaimantInjured Party if such judgment or settlement requires only the payment of money. Notwithstanding anything herein to For the contraryavoidance of doubt, the Indemnifying a claim or challenge asserted by a Governmental Authority against an Injured Party shall be considered a Third Person Claim hereunder. The Injured Party may thereafter participate in (but not be entitled to assume or maintain control of control) the defense of any Proceedingsuch Third Person Claim with its own counsel at its own expense, unless separate representation is, in the reasonable opinion of counsel to the Injured Party, advisable to avoid a conflict of interest or a potential conflict of interest between the Injured Party and the Indemnifying Party, in which case such representation shall be at the expense of the Indemnifying Party. If the Indemnifying Party elects not be entitled to settle or compromise defend the Injured Party with respect to such Third Person Claim, the Injured Party shall have the right, at its option, to assume and control defense of the matter. If the Indemnifying Party does not so elect to indemnify and assume the defense of any such ProceedingThird Person Claim (or fails to elect to assume the defense within the thirty (30) day period set forth in this Section 6.5), and shall pay the reasonable fees and expenses of counsel retained by the Claimant, if (a) the Proceeding relates Injured Party may defend against such claim, in such manner as it may deem appropriate, including settling such claim, after giving written notice of the same to the Indemnifying Party, on such terms as the Injured Party may deem appropriate; provided that in all cases the Injured Party will not consent to the entry of a judgment or arises in connection enter into any settlement with respect to the matter without the prior written consent of the Indemnifying Party (not to be withheld or delayed unreasonably), except that the Injured Party shall be entitled to consent to any criminal proceeding, action, indictment, allegation judgment and/or enter into any settlement without the consent of the Indemnifying Party if such judgment or investigation, settlement does not require the payment of money and (b) the Proceeding seeks injunctive or equitable relief against the Claimant, or Indemnifying Party may participate in (cbut not control) the Indemnifying Party has not elected defense of such action, with its own counsel at its own expense. The Parties shall keep each other reasonably advised of the status of any such suit or proceeding and the defense thereof and shall make available to defend or is failing each other all relevant information in their possession relating to defend any such Third Person Claim and shall cooperate in good faith the Proceedingdefense thereof.

Defense of Third Person Claims. (i) The Indemnifying Party shall have twenty (20) calendar days the right after receipt of the Litigation Notice to promptly notify the Claimant that it acknowledges its obligation to indemnify and hold harmless the Claimant with respect to the Indemnity Loss set forth in the Litigation Notice and that it elects to undertake, conduct and assume control (through counsel of Indemnifying Party’s choice reasonably acceptable to Claimant) any Proceeding instituted by a third party with respect to an identifiable claim (the “Election Notice”). If ; provided, that as a condition precedent to the Indemnifying Party’s right to assume control of such defense, the Indemnifying Party gives a Disagreement Notice (as hereinafter defined) or does not give the foregoing Election Notice during such 20-day period, the Claimant shall have the right (but not the obligation) must first demonstrate to defend, contest, settle or compromise such Proceeding in the exercise of its reasonable discretion; provided, however, that the right of the Claimant to indemnification hereunder shall not be conclusively established thereby. If the Indemnifying Party timely gives the foregoing Election Notice and provides information satisfactory to the Claimant in its writing reasonable discretion confirming evidence of the Indemnifying Party’s financial capacity ability to defend such Indemnity Loss and provide indemnification with respect to such Indemnity Loss, the Indemnifying Party shall have the right to undertake, conduct and control, through counsel reasonably satisfactory to the Claimant and, subject to the provisions set forth below, at the Indemnifying Party’s sole expense, the conduct and settlement assume control of such Proceeding, and the Claimant shall cooperate with the Indemnifying Party in connection therewithdefense of such third party claim; provided, howeverfurther, that (a) the Indemnifying Party shall not thereby consent have the right to the imposition assume control of any injunction against the Claimant without the prior written consent of the Claimant, (b) the Indemnifying Party such defense and shall permit the Claimant to participate in such conduct or settlement through legal counsel chosen by the Claimant, but pay the fees and expenses of such legal counsel shall be borne retained by the Claimant unless (ito the extent required herein), if (1) the Indemnifying Party shall have agreed in writing to third party claim seeks an injunction or equitable relief, or relief for other than money damages against the continuing participation of such Claimant that the Claimant reasonably determines, after conferring with its outside counsel, or cannot be separated from any related claim for money damages, (ii2) the named third party claim involves criminal proceeding, action, indictment, allegation or investigation that could reasonably be expected to involve incarceration of Claimant, any of its affiliates or any of their respective Personnel, (3) the parties to any such Proceeding third party claim or threatened third party claim (including any impleaded parties) include both the Indemnifying Party and the Claimant and representation of both parties by the same counsel would, in the opinion of Claimant’s outside legal counsel, be inappropriate due to the actual or potential differing interests between them, (c) upon a final determination of such Proceeding, the Indemnifying Party shall promptly reimburse the Claimant, to the extent required under this ARTICLE VII, have been advised in writing by counsel for the full amount Claimant that there exists legal conflicts of any Indemnity Loss incurred by the Claimant, except fees and expenses interest pursuant to applicable rules of legal counsel that the Claimant incurred after the assumption of the professional conduct and control of such Proceeding by the Indemnifying Party in good faith, (d) the Claimant shall have the right to pay or settle any such Proceeding; provided, however, that in the event of such payment or settlement which is not consented to by the Indemnifying Party, the Claimant shall waive any right to indemnity therefor by between the Indemnifying Party and no amount in respect thereof shall be claimed as an Indemnity Loss under this ARTICLE VII and the Claimant, (e4) the Indemnifying Party shall be entitled to settle such Proceeding with the consent of the Claimant, which will not be unreasonably withheld, conditioned or delayed or, if such settlement provides for release of the Claimant in connection with all matters relating to the Proceeding which have been asserted against the Claimant in such Proceeding by the other parties to such settlement, without the consent of the Claimant. Notwithstanding anything herein to the contrary, the Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Proceeding, shall not be entitled to settle or compromise any such Proceeding, and shall pay the reasonable fees and expenses of counsel retained by the Claimant, if (a) the Proceeding relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (b) the Proceeding seeks injunctive or equitable relief against the Claimant, or (c) the Indemnifying Party has not elected to defend failed or is failing to use Reasonable Efforts to diligently prosecute or defend in good faith such third party claim, or (5) the ProceedingR&W Insurer has exercised a right to defend the third party claim under the R&W Policy.