Common use of Defense Clause in Contracts

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunder.

Defense. In connection with If any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding action is brought against an indemnified party by a person who is not Third Party with respect to a party matter subject to the indemnification under this Agreement, the Indemnifying indemnifying Party at its sole cost will be entitled to participate in and expense and with counsel reasonably satisfactory to assume the defense thereof to the Indemnified extent that it may wish, and after notice from the indemnifying Party mayto such indemnified party of the indemnifying Party’s election to assume the defense thereof, upon written notice the indemnifying Party shall not be liable to such indemnified party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof unless the indemnifying Party has failed to assume and diligently prosecute the defense of such claim. Notwithstanding any of the foregoing to the Indemnified Partycontrary, the indemnified party will be entitled to select its own counsel and assume the defense of any action brought against it if the indemnifying Party fails to assume or diligently prosecute such defense, the PURCHASE AND SALE AGREEMENT 56 expenses of such defense to be paid by the indemnifying Party. As a condition to the indemnifying Party’s obligations hereunder, the indemnified party will in good faith cooperate with and assist the indemnifying Party in the prosecution or defense of such indemnified claim at no unreasonable expense to the indemnified party. No indemnifying Party shall consent to entry of any judgment or legal proceeding within thirty enter into any settlement with respect to a claim either (30a) days after written notice without the consent of the claim is received subject indemnified party, which consent shall not be unreasonably withheld, or (b) unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a reservation release from all liability with respect to such claim. No indemnified party shall consent to entry of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense any judgment or enter into any settlement of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; providedwhich has been assumed by an indemnifying Party, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying such indemnifying Party, which consent may shall not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunder.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the AgreementExcept as otherwise provided herein, the Indemnifying Party at may elect to pay, compromise or defend (with the expenses incurred by the Indemnifying Party in connection therewith for its sole cost and expense and with own account) by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party mayClaim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, upon written it shall, within 30 days after receiving notice of the Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, with the expense of the Indemnified Party being part of the Loss for which the Indemnified Party is entitled to indemnification pursuant to the terms of this Agreement, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (i) the Indemnified Party may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim (until such defense is assumed by the Indemnifying Party) and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. However, if within 30 days of receiving a notification from the Indemnifying Party that the Indemnifying Party does not elect to defend a Third Party Claim, the Indemnified Party fails to notify the Indemnifying Party that the Indemnified Party is electing to pay, compromise or defend the claim or notifies the Indemnifying Party that it does not elect to pay, compromise or defend the claim, then the Indemnifying Party may elect to pay, compromise or defend the claim by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), assume with the defense of any such claim or legal proceeding within thirty (30) days after written notice expenses incurred by the Indemnifying Party for the account of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party but part of the Loss for its costs and expenses in defending and settling same. The which the Indemnified Party shall be is entitled to participate in (but not control) indemnification pursuant to the defense term by this Agreement. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim over the objection of any such action, with its counsel and at its own expensethe other; provided, however, that if there are one (i) consent to settlement or more legal defenses available to compromise shall not be unreasonably withheld by the Indemnified Party and (ii) if the sole settlement relief payable to a third party in respect of such Third Party Claim is monetary damages that conflict with those available to are paid in full by the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Indemnified Party. In any event, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claimexcept as otherwise provided herein, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate may each participate, at its own expense, in (but not control) the defense of such claim, with its counsel and at its own expenseThird Party Claim. If the Indemnifying Party thereafter seeks chooses to question the manner in which defend any claim, the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, shall make available to the Indemnifying Party shall have the burden to prove by a preponderance of the evidence any personnel or any books, records or other documents within its control that the Indemnified Party did not defend are reasonably necessary or settle appropriate for such third-party claim in a reasonably prudent manner. The parties agree to renderdefense, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderthe receipt of appropriate confidentiality agreements.

Defense. In connection with any claim giving rise to indemnity hereunder resulting Upon receipt of notice under Subsection (a) from or arising out of any claim or legal proceeding by a person who is not a party to the AgreementIndemnitee, the Indemnifying Party will have the duty to either to compromise or defend, at its sole cost and own expense and with by counsel (reasonably satisfactory to Indemnitee), such Action. The Indemnifying Party will promptly (and in any event not more than twenty (20) days after receipt of the Indemnified Indemnitee's original notice) notify the Indemnitee in writing of its intention to either compromise or defend such Action. Once the Indemnifying Party may, upon written notice notifies the Indemnitee of its election to the Indemnified Party, assume the defense of an Action, the Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such claim or legal proceeding within thirty (30) days after written notice defense, other than the Indemnitee's reasonable costs of investigation and cooperation. However, the claim is received subject Indemnitee shall have the right to a reservation of rights to contest its indemnity obligation employ separate counsel and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any an Action (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses of such actioncounsel) if: (i) the use of the counsel chosen by the Indemnifying Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, with its counsel or targets of, such Action include both the Indemnifying Party and at its own expense; providedthe Indemnitee, however, and the Indemnitee reasonably concludes that if there are one or more may be legal defenses available to the Indemnified Party it that conflict with are different from or additional to those available to the Indemnifying Party, or if Party (in which case the Indemnifying Party fails shall not have the right to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that Action on the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, Indemnitee's behalf); (iii) the Indemnifying Party shall reimburse does not employ counsel satisfactory to the Indemnified Party for Indemnitee to represent the Indemnitee within a reasonable fees and expenses time after the Indemnitee's notice of counsels retained by the Indemnified Party and such Action; (iv) the Indemnifying Party shall be entitled denies or fails to participate timely admit its obligation to defend and indemnify the Action; or (v) in (but not control) the defense reasonable opinion of such claim, with its counsel and at its own expense. If to the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlementIndemnitee, the Indemnifying Party shall claim could result in the Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a materially adverse effect on the burden to prove by a preponderance ongoing business of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderIndemnitee.

Defense. In connection The Indemnifying Party will have the right to participate in or, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party Claim, jointly with any claim giving rise other Indemnifying Party similarly notified, to indemnity hereunder resulting elect to assume the defense of, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from or arising out of any claim or legal proceeding by a person who is not a party the Indemnifying Party to the AgreementIndemnitee of its election to assume the defense, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory will not be liable to the Indemnified Party may, upon written notice to Indemnitee for any legal or other expenses except as provided below and except for the Indemnified Party, assume reasonable costs of investigation subsequently incurred by the defense of any such claim or legal proceeding within thirty (30) days after written notice of Indemnitee in connection with the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling samedefense. The Indemnified Party shall be entitled Indemnitee will have the right to participate employ its own counsel in (but not control) the defense of any such action, with its but the fees, expenses and other charges of such counsel and will be at its own expense; providedthe expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, however, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that if there are one or more may be legal defenses available to the Indemnified Party it or other Indemnitees that conflict with are different from or in addition to those available to the Indemnifying Party, (3) a conflict or if potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party fails (in which case the Indemnifying Party will not have the right to take reasonable steps necessary to diligently defend direct the claim after receiving notice from defense of such action on behalf of the Indemnified Party that it believes Indemnitee) or (4) the Indemnifying Party has failed not in fact employed counsel to do so, the Indemnified Party may assume the defense of such claim; providedaction within a reasonable time after receiving notice of the commencement of the action, furtherin each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnified Indemnifying Party may or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not settle such be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the Indemnifying Partyentry of any judgment in any pending or threatened claim, which consent may action or proceedings (whether or not be unreasonably withheld. If the any Indemnified Party assumes the defense is a party thereto), unless such settlement, compromise or consent includes an unconditional release of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense each Indemnitee from all liability arising or that may arise out of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit action or proceeding, whether or not subject to indemnification hereunder.

Defense. In connection with any claim giving rise to indemnity hereunder resulting Upon receipt of notice under Subsection (a) from or arising out of any claim or legal proceeding by a person who is not a party to the AgreementIndemnitee, the Indemnifying Party will have the duty to either compromise or defend, at its sole cost and own expense and with by counsel (reasonably satisfactory to Indemnitee), such Action. The Indemnifying Party will promptly (and in any event not more than twenty (20) days after receipt of the Indemnified Indemnitee's original notice) notify the Indemnitee in writing that it acknowledges its obligation to indemnify the Indemnitee with respect to the Action pursuant to this Article 8 and of its intention to either compromise or defend such Action. Once the Indemnifying Party may, upon written gives such notice to the Indemnified PartyIndemnitee, the Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee's reasonable costs of investigation and cooperation. However, the Indemnitee will have the right to employ separate counsel and to control the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses of such counsel) if: (i) the use of the counsel chosen by the Indemnifying Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the Indemnitee, and the Indemnitee reasonably concludes that there may be legal defenses available to it that are different from or additional to those available to the Indemnifying Party (in which case the Indemnifying Party will not have the right to assume the defense of any such claim or legal proceeding Action on the Indemnitee's behalf); (iii) the Indemnifying Party does not employ counsel satisfactory to the Indemnitee to represent the Indemnitee within thirty (30) days a reasonable time after written the Indemnitee's notice of such Action; (iv) the Indemnifying Party denies or fails to timely admit its obligation to defend and indemnify the Action; or (v) in the reasonable opinion of counsel to the Indemnitee, the claim is received could result in the Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a reservation materially adverse effect on the ongoing business of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expenseIndemnitee; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if in no event shall the Indemnifying Party fails be obligated to take reasonable steps necessary to diligently defend bear the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do sofees, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees costs and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in more than one (but not control1) the defense of such claim, with its separate counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance for all of the evidence that the Indemnified Party did not defend or settle other Party's Indemnitees in such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderAction.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (a) the Indemnifying Party acknowledges to the Indemnified Party in writing, within thirty (30) fifteen days after written receipt of notice from the Indemnified Party, its obligations to indemnify the Indemnified Party with respect to all elements of such claim, (b) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against such third-party claim and fulfill its indemnification obligations hereunder, (c) the third-party claim involves only money damages and does not seek an injunction or other equitable relief, and (d) settlement or an adverse judgment of the third-party claim is received subject not, in the good faith judgment of the Indemnified Party, likely to establish a reservation pattern or practice adverse to the continuing business interests of rights to contest its indemnity obligation and obtain reimbursement from the Indemnified Party for its costs and expenses in defending and settling sameParty. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld, conditioned or delayed provided the Indemnified Party receives a full and complete release. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costscompensation, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunder.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party Subject to the Agreementlimitations set forth in this Section 10.5(b), in the Indemnifying event of a Third Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlementClaim, the Indemnifying Party shall have the burden right (exercisable by written notice to prove by the Indemnified Party within ten (10) days after the Indemnified Party has given a preponderance Claim Notice of the evidence Third Party Claim) to elect to conduct and control, through counsel of its choosing and at the Indemnifying Party’s sole cost and expense, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall provide indemnification to the Indemnified Party in respect thereof; provided, however, that the Indemnified Party did may participate therein through separate counsel chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not defend have given notice of its election to conduct and control the defense of the Third Party Claim within such 15 day period, (B) the Indemnifying Party shall fail to conduct such defense diligently and in good faith, (C) the Indemnified Party shall reasonably determine on written advice of outside counsel that use of counsel selected by the Indemnifying Party to represent the Indemnified Party would present such counsel with an actual or settle potential conflict of interest, or (D) the Third Party Claim is for injunctive, equitable or other non-monetary relief against the Indemnified Party, then in each such third-case the Indemnified Party shall have the right to control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. In addition, the party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure controlling the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderThird Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect thereto.

Defense. In connection with any claim giving rise Except as provided in Section 11.6, if within 10 calendar days after an Indemnitee provides Notice to indemnity hereunder resulting from or arising out the Indemnifying Party of any claim or legal proceeding by a person who is not a party Third Party Claim the Indemnitee receives Notice from the Indemnifying Party that such Indemnifying Party has elected to assume the Agreementdefense of such Third Party Claim, the Indemnifying Party at its sole cost and expense and will not be liable for any legal expenses subsequently incurred by the Indemnitee in connection with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling samethereof. The Indemnified Party Indemnitee shall be entitled to participate in (but not control) the defense of such Third Party Claim and to employ counsel for such purpose at the sole cost and expense of Indemnitee. Each Party shall in good faith consult with the other Party regarding the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available Third Party Claim upon the other Party’s reasonable request from time to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without time. Without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claimIndemnitee, the Indemnifying Party shall reimburse will not enter into any settlement of any Third Party Claim which would lead to liability or create any financial or other obligation on the Indemnified part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder, or which would impose any injunctive or other equitable remedy on the Indemnitee. If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnitee for which the reasonable fees and expenses of counsels retained by Indemnitee is not entitled to indemnification hereunder (or which would not impose any injunctive or other equitable remedy on the Indemnified Party Indemnitee) and the Indemnifying Party shall be entitled desires to participate in (but not control) the defense of accept and agree to such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlementoffer, the Indemnifying Party shall have will give Notice to the burden Indemnitee to prove by a preponderance that effect. If the Indemnitee fails to consent to such firm offer within 10 calendar days after its receipt of such Notice, the Indemnitee may continue to contest or defend such Third Party Claim and, in such event, the maximum liability of the evidence that Indemnifying Party to such Third Party Claim will be the Indemnified Party did not defend amount of such settlement offer, plus reasonable costs and expenses paid or settle incurred by the Indemnitee up to the date of such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereundernotice.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the Agreement, the (a) The Indemnifying Party shall have the right, at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense; providedelection, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent control of the Indemnifying Partynegotiation, which consent may not be unreasonably withheld. If the Indemnified Party assumes the settlement and defense of the claimClaim through counsel of its choice. In such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of the Indemnifying Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume such control, the Indemnified Party shall have the right to be informed and consulted with respect to the negotiation, settlement or defenses of such Claim and to retain counsel to act on its behalf, but the fees and expenses disbursements of counsels retained such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend the Claim within a reasonable period of time, the Indemnified Party shall be entitled to assume such control, and the Indemnifying Party shall be entitled bound by the results obtained by the Indemnified Party with respect to participate the Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in (but not control) respect of which such payment was made, as finally determined, is less than the defense amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such claim, with its counsel and at its own expense. difference to the Indemnifying Party. (b) If the Indemnifying Party thereafter seeks fails to question assume control of the manner in which defense of any Claim, the Indemnified Party defended such third-party claim shall have the exclusive right to consent, settle or pay the amount claimed. Whether or nature not the Indemnifying Party assumes control of the negotiation, settlement or defense of any such settlementClaim, the Indemnifying Party shall have not settle any Claim without the burden to prove by a preponderance written consent of the evidence that the Indemnified Party did Party, which consent shall not defend be unreasonably withheld, conditioned or settle delayed, unless such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement settlement provides solely for out-of-pocket costs, to each monetary damages or other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereundermonetary payments.

Defense. In connection with If the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party written notice to the AgreementIndemnified Party within 15 days following its receipt of the notice of such claim, elect to assume the Indemnifying Party at its sole cost and expense and with defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own cost and expense; provided, however, that if during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there are may be one or more legal defenses available to the Indemnified Party that conflict with it which are different from or additional to those available to the Indemnifying PartyIndemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or if (c) the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party Indemnity Obligor has failed to do so, the Indemnified Party may assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim; provided, furtherall the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, that information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may not settle have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the prior written consent of the Indemnifying Indemnified Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunder.

Defense. In connection with any If a claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who third party is not a made against any party entitled to the indemnification under this Agreement, the Indemnifying such Indemnified Party at its sole cost and expense and with counsel reasonably satisfactory to shall promptly (i.e., within five (5) business days of the Indemnified Party may, upon written having actual knowledge of such claim) notify the indemnifying party of such claim. The indemnifying party shall have ten (10) business days after receipt of the above-referenced notice to undertake, through counsel of its choosing (subject to the reasonable consent of the Indemnified Party, assume ) and at the defense of any such claim or legal proceeding within thirty (30) days after written notice expense of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) indemnifying party, the settlement or defense of any such action, with its counsel and at its own expensethereof; provided, however, that if there are one any such settlement shall be subject to the written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or more legal defenses available to delayed. If approval of the monetary terms of any such proposed settlement is not given, then the Indemnifying Party's maximum monetary obligation for any future settlement or judgment shall be the amount of the settlement that was not so approved. If the indemnifying party does not notify the Indemnified Party within ten (10) business days after receipt of the Indemnified Party's notice of a claim of indemnity hereunder that conflict with those available the indemnifying party elects to undertake the Indemnifying Partydefense thereof, or if the Indemnifying Party fails indemnifying party ceases to take reasonable steps necessary to diligently defend the reasonably contest such claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do soin good faith, the Indemnified Party may assume shall have the defense right to contest, settle or compromise the claim at the expense of such claim; provided, further, that the Indemnified Party may not settle such claim without indemnifying party and subject to the prior written consent of the Indemnifying Partyindemnifying party, which consent may shall not be unreasonably withheld, conditioned or delayed. If the Indemnified Party assumes In connection with the defense of the any claim, each party will make available to the Indemnifying Party shall reimburse party controlling such defense, any books, records or other documents within its control that are reasonably requested in the Indemnified Party for the reasonable fees and expenses course of counsels retained by the Indemnified Party and the Indemnifying Party such defense. Nothing contained in this Section 9.3.2 shall be entitled to participate in (but not control) construed as a limitation on the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature right of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderunder this Agreement.

Defense. (i) In connection with any claim giving rise to indemnity hereunder resulting from or arising out the case of any claim or legal proceeding by a person who is not a third party to the Agreementclaim, the Indemnifying Party at may participate in the defense thereof and, if it so chooses and irrevocably acknowledges its sole cost and expense and obligation to indemnify the Indemnified Party therefor, control the defense of an Indemnifiable Claim with counsel reasonably satisfactory to the Indemnified Party; provided, how- ever, that if the Indemnified Party mayreasonably believes that (x) a material conflict of interest between the Indemnified Party and the Indemnifying Party with respect to the claim or its defense exists or is likely to develop during the pendency of the litiga- tion, upon and as a result of such conflict, the Indemnifying Party’s incentive to defend such claim could reasonably be expected to be materially compromised, or (y) the claim raises serious issues regarding the integrity or moral character of the Indemni- fied Party or any of its Affiliates, or of its of their senior management, in its or their capacity as such (which issues are a fundamental element of the claim) then the In- demnified Party shall be entitled to control the defense of the claim in accordance with paragraph (b)(ii) of this Section 9.3, it being understood that the mere allegation of fraud, willful misconduct, bad faith, malfeasance or any similar such claim as part of multiple claims constituting an Indemnifiable Claim, shall not be deemed, in and of itself, to provide the basis for the Indemnified Party’s rights as set forth in this clause (y). In all cases, the party without the right to control the defense of the In- demnifiable Claim may participate in the defense at its own expense. In the case of a third party claim, the Indemnifying Party shall inform the Indemnified Party within 20 days of receiving the written notice seeking indemnification whether the party elects to control the defense and irrevocably acknowledges its obligation to indem- nify the Indemnified Party therefor. The Indemnifying Party shall be liable for the reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof, provided that it either irrevocably acknowledges in writing its indemnity obligations with respect to the Indemnity Claim or it is determined by a court of competent juris- diction that it is obligated hereunder to provide such indemnification. If the Indemni- fying Party disputes its liability with respect to a potential Indemnifiable Claim or the amount thereof (whether or not it desires to defend the Indemnified Party against a third party claim), the parties shall endeavor in good faith to settle such dispute. The Indemnifying Party shall not settle or compromise a third party claim or legal pro- ceeding without the prior written consent of the Indemnified Party, assume which consent shall not be unreasonably withheld, delayed or conditioned; provided that such prior written consent shall not be required with respect to any Indemnifiable Claim that relates to any item referred to in Sections 9.1(c), (d), (e), (f), (g), (h), or (i), except with respect to any Indemnifiable Claim relating to Remediation of Hazardous Sub- stances that is covered by Section 5.18 shall remain subject in all respects to the defense terms of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling sameSection 5.18. The Indemnified Party shall be not settle or compromise a third party claim for which it is entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim indemnification hereunder without the prior written consent of the Indemnifying Party, which consent may shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the de- fense of any third party claim or litigation resulting therefrom within 20 days after the date it receives notice of such claim from the Indemnified Party, the Indemnified Party assumes may defend against such claim or litigation in such manner as it may deem ap- propriate, including settling such claim or litigation, after giving notice to the Indem- nifying Party, on such terms as the Indemnified Party may deem appropriate. Not- withstanding anything in this Section 9.3 to the contrary, if for any reason (for example the effect of the limitations set forth in Sections 9.4 or 9.5 or evidence that an Indemnifiable Loss may be attributable to events before or after Closing) there is any uncertainty whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or Purchaser, the parties will (A) cooperate in good faith to determine whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or Purchaser, (B) until such uncertainty is resolved to the mutual satisfaction of the par- ties, jointly determine who will control the defense and settlement of any such In- demnifiable Claim and how such defense and settlement will be handled, (C) ▇▇▇▇▇▇- ate with each other in the defense and settlement of such Indemnifiable Claim and the exchange of information relevant thereto, (D) unless otherwise agreed, share the out- of-pocket costs of such defense and settlement (including the costs of investigation, response and mitigation) equally until the parties’ respective rights to indemnification for such costs are resolved, and (E) treat the defense and settlement of such Indemni- fiable Claim as a joint and common defense, including any joint defense agreement which may be entered into by the parties. (ii) In the case of claims described in the proviso to the first sentence of Section 9.3(b)(i), the Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such claim, at the expense of the claimIn- demnifying Party, but the Indemnifying Party will not be bound by any compromise or settlement effected without its consent (which consent shall reimburse the not be unreasonably withheld, conditioned or delayed). The Indemnified Party for shall conduct the defense in good faith and in a commercially reasonable fees manner, and expenses of counsels retained by shall inform the Indemnified Indem- nifying Party and periodically, or upon the Indemnifying Party Party’s reasonable request, of the status of the litigation. The Indemnified Party’s choice of counsel shall be entitled subject to the consent of the Indemnifying Party, such consent not to be unreasonably with- held or delayed. The Indemnifying Party may participate in (but not control) the defense of such claimthereof, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlementIf, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure preserve existing insurance for a claim against IPC cur- rently maintained by Dynegy, it is necessary to permit Dynegy’s insurer to conduct the proper and adequate defense of any actionIPC, suit Purchaser will consider in good faith waiving or proceedingsharing its right to control such defense so that Dynegy’s insurance rights are not lost, whether or not subject to indemnification hereunderthe condition that the insurer accepts the tender of the claim without reservation of rights. Notwithstanding anything to the contrary in this Section 9.3(b), any Indemnifiable Claim relating to Hazardous Substances that is covered by Section 5.18 shall remain subject in all respect to the terms of Section 5.18.

Defense. In connection with If the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor shall, by giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party written notice to the AgreementIndemnified Party within 15 days following its receipt of the notice of such claim, assume the Indemnifying Party defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its sole cost and expense expense; PROVIDED, HOWEVER, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and with to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall Indemnity Obligor that there may be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with it which are different from or additional to those available to the Indemnifying PartyIndemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or if (c) the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party Indemnity Obligor has failed to do so, the Indemnified Party may assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor defends or prosecutes such claim; provided, furtherall the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, that information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may not settle have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the prior written consent of the Indemnifying Indemnified Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunder.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by If a person who Third Party Claim is not a party to the Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to made against the Indemnified Party, assume then the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Indemnifying Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and thereof at its own sole cost and expense; provided, howeverand, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails so chooses, it shall have twenty (20) days from its receipt of the Indemnification Notice (the “Notice Period”) to take reasonable steps necessary to diligently defend the claim after receiving notice from notify the Indemnified Party that it believes desires to assume the defense thereof with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided, that the Indemnifying Party shall not be entitled to assume the defense, and shall be liable for the reasonable fees and expenses of counsel employed by the Indemnified Party, if (i) the claim for indemnification is with respect to a criminal Action; (ii) the claims seeks an injunction on, or other equitable relief against, the Indemnified Party; (iii) if the assumption of such defense by the Indemnifying Party would cause Buyer to lose coverage under the Environmental Insurance Policy or the R&W Insurance Policy or Buyer or any insurer is required to assume such defense under the terms thereunder; or (iv) in the reasonable opinion of counsel for the Indemnified Party, there is a reasonable likelihood of a conflict of interest between the Indemnifying Party and the Indemnified Party. The Indemnifying Party shall be liable for the reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed not assumed the defense thereof. If the Indemnifying Party so elects to do so, the Indemnified Party may assume the defense of such claim; provideda Third Party Claim (in accordance with this Section 8.5(b)), further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, then the Indemnifying Party shall reimburse not be liable to the Indemnified Party for the reasonable fees and expenses of counsels retained counsel subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, that (i) prior to assuming the defense of such Third Party Claim, the Indemnifying Party shall provide to the Indemnified Party an undertaking stating that such Indemnifying Party is able to and will assume the payment of all defense fees and costs and (ii) the Indemnifying Party’s assumption of the defense of such Third Party Claim shall not signify any agreement, obligation or commitment on the part of the Indemnifying Party to assume or pay any amount awarded to a claimant in respect of such Third Party Claim. If the Indemnifying Party assumes such defense (in accordance with this Section 8.5(b)), then the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood, however, that the Indemnifying Party shall control such defense. If the Indemnifying Party chooses to defend any Third Party Claim, then the Parties shall cooperate in the defense or prosecution of such Third Party Claim. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not enter into a settlement of any Third Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed), except to the extent such settlement does not provide for liability or the creation of a financial or other obligation (including the imposition of an injunction or other equitable relief) on the part of the Indemnified Party, does not provide for any statement of liability, wrongdoing, criminal offense or finding or admission of any violation of Law by the Indemnified Party and provides, in customary form, for the Indemnifying full, complete and unconditional release of each Indemnified Party shall be entitled to participate from all liabilities and obligations in (but not control) the defense of connection with such claim, with its counsel and at its own expenseThird Party Claim. If the Indemnifying Party thereafter seeks to question (x) has not within the manner in which Notice Period notified the Indemnified Party defended of its election to assume defense of a Third Party Claim, (y) is not entitled to assume defense of a Third Party Claim under this Section 8.5(b), or (z) fails to defend such third-party claim Third Party Claim actively and in good faith, then the Indemnified Party shall (upon further written notice) have the right to defend and compromise or settle of such Third Party Claim or consent to the amount or nature entry of judgment with respect to such Third Party Claim, in each case at the cost and expense of the Indemnifying Party. If the Indemnified Party has assumed the defense pursuant to this Section 8.5(b), it shall not agree to any such settlement, settlement which imposes any obligation on the Indemnifying Party shall have (including the burden to prove imposition of an injunction or other equitable relief) or which provides for the any statement of liability, wrongdoing, criminal offense or finding or admission of any violation of Law by a preponderance the Indemnifying Party without the prior written consent of the evidence that Indemnifying Party (which consent shall not be unreasonably withheld or delayed), and no such settlement shall be determinative of the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderIndemnifying Party’s obligations under this Article 8.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the this Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (a) the Indemnifying Party acknowledges to the Indemnified Party in writing, within thirty fifteen (3015) days after written receipt of notice from the Indemnified Party, its obligations to indemnify the Indemnified Party with respect to all elements of such claim, (b) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against such third-party claim and fulfill its indemnification obligations hereunder, (c) the third-party claim involves only money damages and does not seek an injunction or other equitable relief, and (d) settlement or an adverse judgment of the third-party claim is received subject not, in the good faith judgment of the Indemnified Party, likely to establish a reservation pattern or practice adverse to the continuing business interests of rights to contest its indemnity obligation and obtain reimbursement from the Indemnified Party for its costs and expenses in defending and settling sameParty. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costscompensation, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunder.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to (a) The Authority shall notify the Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon Borrower no later than 20 entire Business Days after written notice to the Authority that any third party has brought any proceeding against an Indemnified Party that may result in an Indemnifiable Loss (a “Third Party Proceeding”). (b) When notice of a Third Party Proceeding is given to the Borrower at any time by an Indemnified Party, upon the Indemnified Party’s request the Borrower shall assume the investigation and defense, including the employment of counsel selected by the Indemnified Party and reasonably acceptable to the Borrower, and shall pay all Litigation Expenses of the Indemnified Party related to the Third Party Proceeding. Upon assuming the defense of an Indemnified Party, the Borrower may litigate, compromise or settle the Third Party Proceeding for the Indemnified Party, except that the Borrower may not compromise or settle for an Indemnified Party without the Indemnified Party’s written approval. An Indemnified Party has no liability for any such claim compromise or legal proceeding within thirty settlement of a Third Party Proceeding made without its written approval. (30c) days after written Each Indemnified Party may employ separate counsel in any Third Party Proceeding and participate in the investigation and defense. The Borrower shall pay the reasonable fees and disbursements of separate counsel, except that a Depository Indemnified Party may employ separate counsel at the Borrower’s expense only if in the Depository Indemnified Party’s reasonable judgment common representation creates a conflict of interest or if all parties commonly represented do not agree as to the action (or inaction) of counsel. (d) Notwithstanding clause (b) and (c), alternatively, when notice of the claim a Third Party Proceeding is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available given to the Borrower at any time by an Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume engage the defense Attorney General as counsel in connection with the investigation and defense. In that case, the Borrower shall pay all Litigation Expenses of such claim; providedthe Indemnified Party related to the Third Party Proceeding. Upon engaging the Attorney General, further, that the Indemnified Party may not litigate, compromise or settle such claim the Third Party Proceeding, except that the Borrower has no liability for any compromise or settlement of a Third Party Proceeding made without the prior Borrower’s written consent approval. (e) If an Indemnified Party or the Authority fails to notify the Borrower of a Third-Party Proceeding no later than 20 entire business days after written notice to the Authority of the Indemnifying PartyThird-Party Proceeding, which consent may the Borrower is not be unreasonably withheld. If required to pay for any Litigation Expense the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse incurs before the Indemnified Party for gives notice to the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderBorrower.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out ​ (a) Each Party shall promptly notify the other Party of any actual or potential claim alleging that the Research, Development, Manufacture, or legal proceeding by a person who is not a party to the AgreementCommercialization of any Licensed Product infringes, misappropriates, or otherwise violates any Patent Rights, Know-How, or other intellectual property rights of any Third Party (“Third Party Infringement”). In any such instance, the Indemnifying Parties shall as soon as practicable thereafter discuss in good faith the best response to such notice of Third Party Infringement, and, subject to Section 3.6, Gilead shall have the first right (but not the obligation) to defend any such claim of Third Party Infringement, at Gilead’s sole discretion, cost, and expense, and Hookipa shall have the right to be represented in any such action by counsel of its own choice at Hookipa’s sole cost and expense and with counsel reasonably satisfactory expense. ​ CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[***]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED. (b) If Gilead declines or fails to the Indemnified Party may, upon written notice assert its intention to the Indemnified Party, assume the defense of defend any such claim or legal proceeding of Third Party Infringement within thirty (30) [***] days after written following receipt or, as applicable, sending of a notice of pursuant to Section 11.4(a), then Hookipa shall have the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in right (but not controlthe obligation) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying PartyThird Party Infringement at Hookipa’s sole discretion, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claimcost and expense, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party Gilead shall have the burden right to prove be represented in any such action by a preponderance counsel of its own choice at Gilead’s sole cost and expense. ​ (c) In no event shall either Party settle or otherwise compromise any Third Party Infringement by admitting that any Patent Right included within the evidence Licensed Technology is invalid or unenforceable, unless explicitly approved by the other Party in writing. In the event that Gilead, subject to Hookipa’s prior approval, enters into any settlement with respect to any actual or potential claim of Third Party Infringement which includes the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense acceptance of any actionlicense to Patent Rights, suit Know-How, or proceedingother intellectual property rights owned or otherwise Controlled by any Third Party and necessary or useful for the Research, whether Development, Manufacture, or not Commercialization of any Licensed Product, such settlement shall further be subject to indemnification hereunder.Section 9.5(c). ​

Defense. In connection with If any claim giving rise of the indemnified parties is made or threatened ------- to indemnity hereunder resulting from be made a defendant in or arising out of any claim or legal proceeding by a person who is not a party to any action or proceeding, judicial or administrative, instituted by any third party for the Agreementliability under which or the costs or expenses of which any of the indemnified parties is entitled to be indemnified pursuant to Section 10 (any such third party action or proceeding being referred to as an "Indemnification Claim"), the Indemnifying Party indemnified party or parties shall give prompt notice thereof to the indemnifying party; provided -------- that the failure to give such notice shall not affect the indemnified party or parties' ability to seek indemnification hereunder unless such failure has materially and adversely affected the indemnifying party or parties' ability to prosecute successfully an Indemnification Claim. Each indemnified party shall permit the indemnifying party, at its sole cost and expense and with counsel reasonably satisfactory own expense, to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30any litigation to which this Section 10(d) days after written notice of may be applicable, by counsel reasonably satisfactory to the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party indemnified party or parties; provided, -------- that the indemnified party or parties shall be entitled at any time, at its or their own cost and expense (which expense shall not be recoverable from the indemnifying party unless the indemnifying party is not adequately representing or, because of a conflict of interest, may not adequately represent, the indemnified party or parties' interests), to participate in (but such claim, action or proceeding and to be represented by attorneys of its or their own choosing. If the indemnified party or parties elects to participate in such defense, such party or parties will cooperate with the indemnifying party in the conduct of such defense. The indemnified party or parties may not control) concede, settle or compromise any Indemnification Claim without the consent of the indemnifying party. The indemnifying party, in the defense of any such actionclaim or litigation, shall not, except with its counsel the approval of each indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party or parties of a full and at its own expense; provided, however, that if there are one or more legal defenses available complete release from all liability in respect to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheldor litigation. If the Indemnified Party assumes the defense of the claimIndemnification Claim arises under Section 10(b)(iii), the Indemnifying Party indemnifying party shall reimburse defend the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-third party claim in a reasonably prudent manner. The parties agree the name of the indemnifying party and pay any amounts to render, without compensation but with reimbursement for out-of-pocket costs, be indemnified under such section directly to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderclaiming party.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by If a person who Third Party Claim is not a party to the Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to made against the Indemnified Party, assume then the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Indemnifying Party shall be entitled to participate in (but not control) the defense of any such actionthereof and, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails so chooses, to take assume the defense thereof with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. The Indemnifying Party shall be liable for the reasonable steps necessary to diligently defend the claim after receiving notice from fees and expenses of counsel employed by the Indemnified Party that it believes for any period during which the Indemnifying Party has failed not assumed the defense thereof. If the Indemnifying Party so elects to do so, the Indemnified Party may assume the defense of such claim; provideda Third Party Claim, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, then the Indemnifying Party shall reimburse not be liable to the Indemnified Party for the reasonable fees and expenses of counsels retained counsel subsequently incurred by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) connection with the defense of such claim, with its counsel and at its own expensethereof. If the Indemnifying Party thereafter seeks to question the manner in which assumes such defense, then the Indemnified Party defended such third-party claim or shall have the amount or nature of any such settlementright to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood, however, that the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that control such defense and the Indemnified Party did shall pay the expense of his or its separate counsel. If the Indemnifying Party chooses to defend any Third Party Claim, then the Parties shall cooperate in the defense or prosecution of crossclaims or counterclaims relating to such Third Party Claim. Such cooperation shall include, without limitation, the retention, and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party, of records that are reasonably relevant to such Third Party Claim, and making employees of the Indemnified Party available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. If, but only if the Indemnifying Party, within a reasonable time after receipt of an Indemnification Notice relating to a Third Party Claim, chooses not to assume defense of a Third Party Claim or fails to defend such Third Party Claim actively and in good faith, then the Indemnified Party shall (upon further written notice to the Indemnifying Party) have the right thereafter to defend, compromise or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderThird Party Claim.

Defense. In connection with (a) If the facts relating to a Loss arise out of the claim of any third party, or if there is any claim giving rise to indemnity hereunder resulting from or arising out against a third party available by virtue of any claim or legal proceeding by a person who is not a party to the Agreementcircumstances of the Loss, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party Indemnity Obligor may, upon by giving written notice to the Indemnified PartyParty within 15 days following its receipt of the notice of such claim, elect to assume the defense or the prosecution thereof, including the employment of any such claim counsel or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and accountants at its own cost and expense; provided, however, that if during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. If notice is given to the Indemnity Obligor of the commencement of any Proceeding and the indemnifying party does not, within 15 days after the Indemnified Party's notice is given, give notice to the Indemnified Party of its election to assume the defense of such Proceeding, the indemnifying party will be bound by any determination made in such Proceeding or any compromise or settlement effected by the Indemnified Party. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party will have been advised by counsel reasonably satisfactory to the Indemnity Obligor that there are may be one or more legal defenses available to the Indemnified Party that conflict with it which are different from or additional to those available to the Indemnifying PartyIndemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or if (c) the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party Indemnity Obligor has failed to do so, the Indemnified Party may assume the defense of such action or employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses so to defend or prosecute such claim; provided, furtherall the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, that information and testimony and shall attend such conferences, discovery proceedings and trials as may be reasonably requested in connection therewith. Except as previously set forth in this Section 13.04, the Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a third party claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may not settle have any right or claim against such third party relating to such Indemnified Matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party including any compromise or settlement of such claims without the prior written consent of the Indemnifying Indemnified Party. (b) Notwithstanding the foregoing, if an Indemnified Party determines in good faith that there is a reasonable probability that a Proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which such Indemnified Party would be entitled to indemnification under this Agreement, the Indemnified Party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or settle such Proceeding, but the indemnifying party will not be bound by any determination of a Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunder).

Defense. In connection The Indemnified Party shall have the right and obligation to defend against, negotiate, settle or otherwise deal with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the Agreement, the Indemnifying Third-Party at its sole cost and expense and with counsel reasonably satisfactory to Claim in good faith but otherwise in such manner as the Indemnified Party may, upon written notice deems appropriate and to the Indemnified Party, assume the defense be represented by counsel of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling sameown choice. The Indemnified Party shall not admit any liability with respect thereto or settle, compromise, pay or discharge the same without the consent of the Indemnifying Party (or, in the case of indemnification under Section 7.1(b), the Company Stockholder Representative), which consent shall not be entitled to participate unreasonably withheld, so long as the Indemnified Party is contesting or defending the same with reasonable diligence and in (but not control) the defense of any such action, with its counsel and at its own expensegood faith; provided, however, that if there are one or more legal defenses available to the Indemnifying Party may participate in any proceeding with counsel of its choice and at its expense. In the event the Indemnified Party that conflict fails to defend against, negotiate, settle or otherwise deal with those available to the Indemnifying Partysuch Third Party Claim as provided above in this Section 7.3(b), or if then the Indemnifying Party fails shall have the right to take reasonable steps necessary defend against, negotiate, settle or otherwise deal with the Third Party Claim in good faith and otherwise in such manner as the Indemnifying Party deems appropriate; provided, however, that the Indemnifying Party will not consent to diligently defend the claim after receiving notice from entry of any judgment on or enter into any settlement with respect to the Third-Party Claim (A) in the case of a settlement, unless the settlement includes, as an unconditional term thereof, the giving by the third party of a release of the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense from all liability in respect of such claim; providedThird-Party Claim (other than pursuant to the terms of the settlement), further(B) if the judgment or settlement involves any injunctive or other equitable relief, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Indemnified Party, which consent may not be unreasonably withheld. If and (C) if the judgment or settlement with respect to an Indemnified Party assumes the defense involves any amount in excess of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained indemnification obtained by the Indemnified Party and hereunder, without the Indemnifying Party shall be entitled to participate in (but not control) the defense prior written consent of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderParty.

Defense. In connection with any claim giving rise The Indemnifying Party shall have the right to indemnity hereunder resulting from direct, through counsel of its own choosing, the defense or arising out settlement of any claim action or legal proceeding by a person who is not a party to brought against the AgreementIndemnified Party in respect of Third Party Claims; provided, however, that the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to shall not settle any matter without obtaining the Indemnified Party's prior consent thereto if such settlement provides for any remedy other than the payment of money damages or that does not provide for a full release of the Indemnified Party mayor, upon written notice regardless of the terms of such settlement, if the Indemnifying Party disputes its liability with respect to the Indemnified Party, Third Party Claim. If the Indemnifying Party elects to assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do soproceeding, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the such defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks fails to question the manner in which defend or, after commencing or undertaking any such defense, fails to prosecute or withdraws from such defense other than as a result of a settlement, the Indemnified Party defended such third-party claim shall have the right to direct, at the Indemnifying Party's sole cost and expense, through counsel of its own choosing, the defense or the amount or nature settlement of any such settlementaction or proceeding; provided, however, that if the Indemnified Party assumes the defense of any such claim or proceeding pursuant to this Section 10.3 and proposes to settle such claim or proceeding prior to a final judgment thereon or to forego appeal with respect thereto, then the Indemnified Party shall give the Indemnifying Party prompt written notice thereof and the Indemnifying Party shall have the burden right to prove by a preponderance participate in and consent (which consent shall not be unreasonably withheld) to the settlement or assume or reassume the defense of such claim or proceeding. Notwithstanding the evidence that foregoing provisions of this Section 10.3(b), if the Indemnifying Party disputes its liability to the Indemnified Party did and if such dispute is resolved in favor of the Indemnifying Party by final, nonappealable order of a court of competent jurisdiction, the Indemnifying Party shall not defend or settle be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.3(b), and the indemnified Party shall reimburse the Indemnifying Party in full for all costs and expenses incurred by the Indemnifying Party in connection with such third-Third Party Claim. The party claim in a reasonably prudent mannerdirecting the defense shall pursue such defense diligently and promptly. The parties agree to render, without compensation but shall cooperate in the defense of all Third Party Claims. In connection with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any actionThird Party Claim, suit each party shall make available to the party controlling such defense any books, records or proceeding, whether other documents within its control that are reasonably requested in the course of or not subject to indemnification hereundernecessary or appropriate for such defense.

Defense. In connection with any claim giving rise to indemnity hereunder resulting Upon receipt of notice under Subsection (a) from or arising out of any claim or legal proceeding by a person who is not a party to the AgreementIndemnitee, the Indemnifying Party will have the duty to either compromise or defend, at its sole cost and own expense and by counsel (reasonably satisfactory to Indemnitee), such Action. The Indemnifying Party will promptly (and in any event not more than twenty (20) days after receipt of the Indemnitee’s original notice) notify the Indemnitee in writing that it acknowledges its obligation to indemnify the Indemnitee with respect to the Action pursuant to this Article 10 and of its intention to either compromise or defend such Action. Once the Indemnifying Party gives such notice to the Indemnitee, the Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee’s reasonable costs of investigation and cooperation. However, the Indemnitee will have the right to employ separate counsel and to control the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses of such counsel) if: (i) the use of the counsel chosen by the Indemnifying Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the Indemnitee, and the Indemnitee reasonably concludes that there may be legal defenses available to it that are different from or additional to those available to the Indemnifying Party (in which case the Indemnifying Party will not have the right to assume the defense of such Action on the Indemnitee’s behalf); (iii) the Indemnifying Party does not employ counsel reasonably satisfactory to the Indemnified Party may, upon written notice Indemnitee to represent the Indemnified Party, assume the defense of any such claim or legal proceeding Indemnitee within thirty (30) days after written the Indemnitee’s notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in such Action; or (but not controliv) the defense of any such action, with Indemnifying Party denies or fails to timely admit its counsel obligation to defend and at its own expenseindemnify the Action; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if in no event shall the Indemnifying Party fails be obligated to take reasonable steps necessary bear the fees, costs and expenses of more than one (1) separate counsel for all of the other Party’s Indemnitees in such Action. In any event, the Indemnitee may elect to diligently defend the claim after receiving notice from the Indemnified Party be represented by separate counsel, at its expense; provided, that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume retains control of the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance except as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderprovided above.

Defense. In connection with any claim giving rise The Indemnifying Party shall have the right to indemnity hereunder resulting from direct, through counsel of its own choosing, the defense or arising out settlement of any claim action or legal proceeding by a person who is not a party to brought against the AgreementIndemnified Party in respect of Third Party Claims; provided, however, that the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to shall not settle any matter without obtaining the Indemnified Party's prior consent thereto if such settlement provides for any remedy other than the payment of money damages or that does not provide for a full release of the Indemnified Party mayor, upon written notice regardless of the terms of such settlement, if the Indemnifying Party disputes its liability with respect to the Indemnified Party, Third Party Claim. If the Indemnifying Party elects to assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do soproceeding, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the such defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks fails to question the manner in which defend or if after commencing or undertaking any such defense fails to prosecute or withdraws from such defense other than as a result of a settlement, the Indemnified Party defended such third-party claim shall have the right to direct, at the Indemnifying Party's sole cost and expense, through counsel of its own choosing, the defense or the amount or nature settlement of any such settlementaction or proceeding; provided, however, that if the Indemnified Party assumes the defense of any such claim or proceeding pursuant to this SECTION 10.3 and proposes to settle such claim or proceeding prior to a final judgment thereon or to forego appeal with respect thereto, then the Indemnified Party shall give the Indemnifying Party prompt written notice thereof and the Indemnifying Party shall have the burden right to prove by a preponderance participate in and consent (which consent shall not be unreasonably withheld) to the settlement or assume or reassume the defense of such claim or proceeding. Notwithstanding the evidence that foregoing provisions of this SECTION 10.3(b), if the Indemnifying Party disputes its liability to the Indemnified Party did and if such dispute is resolved in favor of the Indemnifying Party by final, nonappealable order of a court of competent jurisdiction, the Indemnifying Party will not defend or settle be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this SECTION 10.3(b), and the Indemnified Party shall reimburse the Indemnifying Party in full for all costs and expenses incurred by the Indemnifying Party in connection with such third-Third Party Claim. The party claim in a reasonably prudent mannerdirecting the defense shall pursue such defense diligently and promptly. The parties agree to render, without compensation but shall cooperate in the defense of all Third Party Claims. In connection with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any actionThird Party Claim, suit each party shall make available to the party controlling such defense any books, records, or proceeding, whether other documents within its control that are reasonably requested in the course of or not subject to indemnification hereundernecessary or appropriate for such defense.

Defense. In connection with any claim giving rise to indemnity hereunder resulting Upon receipt of notice under Section 13.2(a) from or arising out of any claim or legal proceeding by a person who is not a party to the AgreementIndemnitee, the Indemnifying Party will have the duty to either to compromise or defend, at its sole cost and own expense and with by counsel (reasonably satisfactory to Indemnitee), such Action. The Indemnifying Party will promptly (and in any event not more than [**] after receipt of the Indemnified Indemnitee's original notice) notify the Indemnitee in writing of its intention to either compromise or defend such Action. Once the Indemnifying Party may, upon written notice notifies the Indemnitee of its election to the Indemnified Party, assume the defense of an Action, the Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such claim or legal proceeding within thirty (30) days after written notice defense, other than the Indemnitee's reasonable costs of investigation and cooperation. However, the claim is received subject Indemnitee shall have the right to a reservation of rights to contest its indemnity obligation employ separate counsel and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any an Action (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses of such actioncounsel) if: (i) the use of the counsel chosen by the Indemnifying Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, with its counsel or targets of, such Action include both the Indemnifying Party and at its own expense; providedthe Indemnitee, however, and the Indemnitee reasonably concludes that if there are one or more may be legal defenses available to the Indemnified Party it that conflict with are different from or additional to those available to the Indemnifying Party, or if Party (in which case the Indemnifying Party fails shall not have the right to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that Action on the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, Indemnitee's behalf); (iii) the Indemnifying Party shall reimburse does not employ counsel satisfactory to the Indemnified Party for Indemnitee to represent the Indemnitee within a reasonable fees and expenses time after the Indemnitee's notice of counsels retained by the Indemnified Party and such Action; (iv) the Indemnifying Party shall be entitled denies or fails to participate timely admit its obligation to defend and indemnify the Action; or (v) in (but not control) the defense reasonable opinion of such claim, with its counsel and at its own expense. If to the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlementIndemnitee, the Indemnifying Party shall claim could result in the Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a materially adverse effect on the burden to prove by a preponderance ongoing business of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderIndemnitee.

Defense. In connection with Except as set forth in Section 11.5(d) hereof, if any claim giving rise to indemnity hereunder resulting from action, suit or arising out of proceeding is commenced, or any claim or legal proceeding demand is asserted, by a person who is third party not Affiliated with any party hereto against a party hereto (the "Indemnitee") in respect of which the Indemnitee proposes to demand indemnification under Section 11.1 or 11.2 above, the party from which indemnification is sought (the "Indemnitor") shall have the right to assume the entire control thereof (including the selection of counsel reasonably acceptable to the AgreementIndemnitee), subject to the Indemnifying Party right of the Indemnitee to participate (with counsel of its choice reasonably acceptable to the Indemnitor but at its sole cost and expense and the Indemnitee's expense) in the defense, compromise or settlement thereof; provided, however, if the claim or demand is one for which both parties hereto are responsible, then both parties shall jointly assume the defense thereof with counsel reasonably satisfactory acceptable to each party, and neither party may compromise or settle such claim or demand without the other party's consent, which consent will not be unreasonably denied or withheld. The Indemnitee shall notify the Indemnitor at the earliest practical time after the Indemnitee becomes aware of the circumstance, event or activity which gives rise to the Indemnified Party mayasserted obligation of indemnity, upon written it being understood that failure to provide such notice shall not affect the Indemnitee's right to indemnification hereunder, except to the Indemnified Partyextent the Indemnitor shall have been prejudiced as a result of such failure (and the Indemnitor shall not be liable for any attorney fees or expenses incurred during the period in which the Indemnitor shall have failed to give such notice). With respect to any actions, suits, proceedings, claims or demands as to which the Indemnitor shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of any and contest such claim or legal proceeding within thirty (30) days after written notice of action with counsel chosen by it and approved by the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses Indemnitor, which approval shall not be unreasonably withheld, in defending and settling same. The Indemnified Party which case the Indemnitor shall be entitled to participate in (but not control) the defense of such action (the cost of such participation to be at its own expense) and the Indemnitor shall be obligated to pay the reasonable attorneys' fees and expenses of the Indemnitee to the extent that such fees and expenses relate to claims as to which indemnification is due under this Article XI and subject to the limitations contained in this Agreement. Both the Indemnitor and the Indemnitee shall cooperate fully in all respects with one another in any such defense, compromise or settlement, including, without limitation, by making available to the other all pertinent information and personnel under its direct or indirect control, and the parties agree that such cooperation will be carried out in a way so as not to waive any applicable or available attorney-client privilege, and the parties will take all measures to protect such privilege. Neither party shall compromise or settle any such action, with its counsel and at its own expense; suit, proceeding, claim or demand without prior written consent of the other party, which consent shall not be unreasonably withheld or delayed, provided, however, that a party may so compromise or settle, after consultation with the other party, (i) if there are one such compromise or more legal defenses available settlement involves solely the payment of money damages and/or the granting of releases, provided that no such compromise, settlement or release shall acknowledge liability for future acts or obligate any ▇▇▇▇▇▇▇▇ Indemnitee with respect to any post-Closing activities of the Business or, except for the Assumed Liabilities, obligate any Purchaser Indemnitee with respect to any pre-Closing activities of the Business, (ii) if all claimants provide a release (reasonably acceptable to such Indemnitees) in favor of Indemnitees, and (iii) if all claimants agree in writing to maintain the facts and circumstances of the settlement confidential to the Indemnified Party that conflict with those available extent permitted by applicable law). This Section 11.3 shall not apply to the Indemnifying Party, direct claims of any ▇▇▇▇▇▇▇▇ Indemnitee against Purchaser or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense Silgan or of such claim; provided, furtherany Purchaser Indemnitee against ▇▇▇▇▇▇▇▇, that the Indemnified Party may are not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained based upon claims asserted by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderthird parties.

Defense. In connection with the event any claim giving rise to indemnity hereunder resulting from person or arising out of any claim or legal proceeding by a person who is entity not a party to this Agreement shall make a demand or claim, file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential loss, damage or expense comes to the attention of any party in respect of matters embraced by the indemnity under this Agreement, then the party receiving notice or aware of such event shall promptly notify the other party or parties of the demand, claim or lawsuit. Within ten days after notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense and with expense, to retain counsel reasonably satisfactory to the Indemnified Party may, upon written notice to for the Indemnified Party, to defend any such demand, claim or lawsuit, provided that counsel who shall conduct the defense of such demand, claim or lawsuit shall be approved by the Indemnified Party whose approval shall not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (a) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (other than differing interests associated with an Indemnifying Party's obligation to indemnify), or (b) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (c) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or legal proceeding within thirty (30) days after written notice lawsuit, shall consent to entry of any judgment or enter into any settlement without the consent of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expenseParty; provided, however, that if there are one or more legal defenses available a firm written offer is made by the third party to settle any claim, which involves only the payment of cash (United States dollars) and the claimant provides to the Indemnified Party that conflict with those available a general release in a form reasonably acceptable to the Indemnifying PartyIndemnified Party from all liability, or if and the Indemnifying Party fails proposes to take reasonable steps necessary to diligently defend accept (and pay in full the claim after receiving notice from amount of ) such settlement but the Indemnified Party that it believes the Indemnifying Party has failed refuses to do soconsent to such settlement, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and then: (i) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claimexcused from, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended shall be solely responsible for, all further defense costs related to such third-party claim; (ii) the maximum reimbursement amount relating to such third-party claim or shall be the amount or nature of the proposed settlement (plus any such settlement, defense costs not paid by the Indemnifying Party shall have prior to the burden to prove by a preponderance rejection of the evidence that settlement) if the amount thereafter recovered from the Indemnified Party did not defend or settle on such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require is greater that the amount of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunder.proposed settlement; and;

Defense. In connection with (a) Promptly after the receipt by any claim giving rise person entitled to indemnity hereunder resulting from or arising out indemnification under Section 5.1 and 5.2 of this Agreement of notice of (i) any claim or legal (ii) the commencement of any action or proceeding, such party (the “Aggrieved Party”) will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 5.1 and 5.2 of this Agreement (the “Indemnifying Party”), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding by a person who is not a party to the Agreement, and shall permit the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the Indemnifying Party in the conduct of the defense of such action. Failure by the Indemnifying Party to notify the Aggrieved Party of its election to defend any such proceeding or action within thirty (30) a reasonable time, but in no event more than 15 days after written notice of thereof shall have been given to the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party Indemnifying Party, shall be entitled deemed a waiver by the Indemnifying Party of its right to participate in defend such action. (but not controlb) If the Indemnifying Party assumes the defense of any such actionclaim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with its counsel and such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its own expense; provided, however, in the defense of such claim or litigation provided that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or if enter into any settlement, except with the written consent of the Aggrieved Party. (c) If the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may shall not assume the defense of any such claim; providedclaim or litigation resulting therefrom, further, that the Indemnified Aggrieved Party may not settle defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the prior written consent of the Indemnifying Party, which consent may shall not be unreasonably withheld. If the Indemnified Party assumes the defense no settlement of the claimclaim or litigation is made, the Indemnifying Party shall promptly reimburse the Indemnified Aggrieved Party for the reasonable fees amount of any judgment rendered with respect to such claim or in such litigation and expenses of counsels retained all expenses, legal or otherwise, as incurred by the Indemnified Aggrieved Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of against such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or litigation. (d) The rights to indemnification hereunder shall apply to claims made by either party against the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance other whereby written notice of the evidence that claim has been made and delivered within the Indemnified Party did not defend or settle such thirdone-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure year period following the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderClosing Date unless otherwise provided herein.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by If a person who Third Party Claim is not a party to the Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to made against the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and then the Indemnifying Party shall be entitled to participate in (but the negotiation, settlement and defense thereof with counsel of its choice and, if the Indemnifying Party so chooses, to assume the negotiation, settlement and defense thereof with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not control) assumed the defense of such claim, with its counsel and at its own expensethereof. If the Indemnifying Party thereafter seeks so elects to question assume the manner in which defense of a Third Party Claim, then the Indemnifying Party shall not be liable to the Indemnified Party defended for the fees and expenses of counsel subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, that (i) prior to assuming the defense of such third-party claim or the amount or nature of any such settlementThird Party Claim, the Indemnifying Party shall have the burden provide to prove by a preponderance of the evidence that the Indemnified Party did an undertaking stating that such Indemnifying Party is able to and will assume the payment of all defense fees and costs and (ii) the Indemnifying Party’s assumption of the defense of such Third Party Claim shall not signify any agreement, obligation or commitment on the part of the Indemnifying Party to assume or pay any amount awarded to a claimant in respect of such Third Party Claim. If the Indemnifying Party assumes such defense, then the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood, however, that the Indemnifying Party shall control such defense. If the Indemnifying Party chooses to defend any Third Party Claim, then the Parties shall cooperate in the defense or settle prosecution of such third-party claim Third Party Claim. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. If the Indemnifying Party has not within thirty (30) Business Days after receipt of an Indemnification Notice relating to a Third Party Claim, chosen to assume defense of a Third Party Claim or fails to defend such Third Party Claim actively and in a reasonably prudent mannergood faith, then the Indemnified Party shall (upon further written notice) have the right to defend such Third Party Claim. The parties agree Indemnified Party shall not take any action the purpose of which is to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure prejudice the proper and adequate defense of any action, suit claim subject to indemnification hereunder or proceeding, whether or not to induce a third party to assert a claim subject to indemnification hereunder.

Defense. In connection with (a) If the facts pertaining to a Loss arise out of the claim of any third party, or if there is any claim giving rise to indemnity hereunder resulting from or arising out against a third party available by virtue of any claim or legal proceeding by a person who is not a party to the Agreementcircumstances of the Loss, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party Indemnity Obligor may, upon by giving written notice to the Indemnified PartyParty within twenty (20) days following its receipt of the notice of such claim, elect to assume the defense or the prosecution of any such claim claim, including the employment of counsel or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest accountants at its indemnity obligation cost and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling sameexpense. The Indemnified Party shall be entitled have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate in (but not control) the defense of any such action, with its but the fees and expenses of such counsel and shall be at its the Indemnity Obligor’s own expense; provided. (b) Whether or not the Indemnity Obligor chooses to defend or prosecute an indemnification claim under Section 9.4(a), howeverall the parties to this Agreement shall cooperate in the defense or prosecution of such claim and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trials as may be reasonably requested in connection therewith. Each party shall act in good faith and in a commercially reasonable manner in addressing any liabilities that if there are one may provide the basis for an indemnifiable claim. (c) No Indemnity Obligor may settle any claim affecting an Indemnified Party without such Indemnified Party’s prior written consent, not to be unreasonably withheld, conditioned or more legal defenses available delayed. No Indemnified Party may settle any claim affecting an Indemnity Obligor without such Indemnity Obligor’s prior written consent, not to be unreasonably withheld, conditioned or delayed. (d) In the event of payment by the Indemnity Obligor to the Indemnified Party that conflict in connection with those available any Loss arising out of a third party claim, the Indemnity Obligor shall not be subrogated to and shall not stand in the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from place of the Indemnified Party that it believes the Indemnifying Party has failed as to do so, any events or circumstances in respect of which the Indemnified Party may assume the defense of have any right or claim against such claim; provided, further, that the Indemnified Party may not settle third party relating to such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderindemnified matter.

Defense. In connection with the event any claim giving rise to indemnity hereunder resulting from person or arising out of any claim or legal proceeding by a person who is entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, then the party receiving notice of such event shall promptly notify the other party or parties of the demand, claim or lawsuit. Within ten (10) days after notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense and with expense, to retain counsel reasonably satisfactory to the Indemnified Party may, upon written notice to for the Indemnified Party, to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (a) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, or (b) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (c) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or legal proceeding within thirty (30) days after written notice lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party. If any Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall will have been advised by counsel chosen by it that there may be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the such Indemnified Party that conflict with which are different from or additional to those available to and which have not been asserted by the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend will not have at the claim after receiving notice from election of the Indemnified Party that it believes the Indemnifying Party has failed to do soParty, the Indemnified Party may assume right to continue the defense of such claim; provideddemand, further, that the claim or lawsuit on behalf of such Indemnified Party may not settle and will reimburse such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the and any person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of counsels any counsel retained by the Indemnified Party and to undertake the defense. In the event that the Indemnifying Party shall be entitled fail to participate in respond within ten (but not control10) days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such claimdemand, with claim or lawsuit, as it may in its counsel sole discretion deem proper, at the sole cost and at its own expense. If expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party thereafter seeks on a current basis. Except as explicitly provided in this Section 9.3(b), failure to question provide Notice shall not limit the manner in which the Indemnified Party defended rights of such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderindemnification.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the Agreement, The Indemnified Party and the Indemnifying Party at its sole cost and expense and shall cooperate with counsel the party assuming the defense, compromise or settlement of any such Action in accordance herewith in any manner that such party reasonably satisfactory to may request. If the Indemnified Indemnifying Party may, upon written notice to the Indemnified Party, assume so assumes the defense of any such claim or legal proceeding within thirty (30) days after written notice of Action, the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled have the right to employ separate counsel and to participate in (but not control) the defense defense, compromise, or settlement thereof, but the fees and expenses of such counsel shall be the expense of such Indemnified Party unless (a) the Indemnifying Party has specifically agreed to pay such fees and expenses, (b) any such action, with relief other than the payment of money damages is sought against the Indemnified Party or (c) the Indemnified Party shall have been advised by its counsel and at its own expense; provided, however, that if there are may be one or more legal defenses available to the Indemnified Party it that conflict with are different from or additional to those available to the Indemnifying Party, Party or if that there may be a conflict of interest between the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from and the Indemnified Party that it believes in the Indemnifying Party has failed to do so, the Indemnified Party may assume conduct of the defense of such claim; providedAction (in either of which cases the Indemnifying Party shall not have the right to direct the defense, furthercompromise or settlement of such Action on behalf of the Indemnified Party), and in any such case the reasonable fees and expenses of such separate counsel shall be borne by the Indemnifying Party, it being understood and agreed, however, that the Indemnifying Party shall not be liable for the fees and expenses of more than one separate firm of attorneys at any time for the Indemnified Party may together with its Affiliates, unless there shall be a conflict of interest between the Indemnified Party and an Affiliate thereof, in which case the Indemnifying Party shall not be liable for the fees and expenses of more than an aggregate of two separate firms of attorneys at any time for the Indemnified Party and its Affiliates. No Indemnified Party shall settle or compromise or consent to entry of any Judgment with respect to any such claim Action for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, unless the Indemnifying Party shall have failed, after reasonable notice thereof, to undertake control of such Action in the burden to prove by a preponderance manner provided above in this Section 7.4. The Indemnifying Party shall not, without the written consent of the evidence Indemnified Party, settle or compromise or consent to entry of any Judgment with respect to any such Action (x) in which any relief other than the payment of money damages is or may be sought against any Indemnified Party, or (y) that does not include as an unconditional term thereof the giving by the claimant, party conducting such investigation, plaintiff or petitioner to such Indemnified Party did not defend or settle of a release from all liability with respect to such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderAction.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the AgreementExcept as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at its sole cost and such Indemnifying Party's own expense and with by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party mayClaim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim (10 days if the Indemnifying Party states in such notice that prompt action is required), notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (i) the Indemnified Party may pay (without prejudice to any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim (until such defense is assumed by the Indemnifying Party) and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon written notice advice of its outside legal counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim or (y) there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, assume then the Indemnified Party shall have the right to direct the defense of such Third Party Claim with the participation of the Indemnifying Party. In such an event, the Indemnifying Party shall pay the reasonable fees and disbursements of counsel of the Indemnifying Party and one counsel to all the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim (however, if the sole settlement relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full by the Indemnifying Party, the Indemnifying Party may settle such claim or legal proceeding within thirty (30) days after written notice without the consent of the claim is received subject to a reservation Indemnified Party) over the objection of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expenseother; provided, however, that if there are one consent to settlement or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may compromise shall not be unreasonably withheld. If withheld by the Indemnified Party assumes the defense of the claimParty. In any event, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by except as otherwise provided herein, the Indemnified Party and the Indemnifying Party shall be entitled to participate may each participate, at its own expense, in (but not control) the defense of such claim, with its counsel and at its own expenseThird Party Claim. If the Indemnifying Party thereafter seeks chooses to question the manner in which defend any claim, the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, shall make available to the Indemnifying Party shall have the burden to prove by a preponderance of the evidence any personnel or any books, records or other documents within its control that the Indemnified Party did not defend are reasonably necessary or settle appropriate for such third-party claim in a reasonably prudent manner. The parties agree to renderdefense, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderthe receipt of appropriate confidentiality agreements.

Defense. If the matter with respect to which a Party seeks indemnification (the "Indemnitee") involves a claim asserted against the Indemnitee by a third party, promptly after receipt by the Indemnitee of notice of the commencement of any action, it will notify the other Party (the "Indemnitor") in writing of the commencement thereof but the omission so to notify the Indemnitor will not relieve the Indemnitor from any liability which it may have to the Indemnitee unless the Indemnitor is prejudiced by such omission. In case any such action shall be brought against the Indemnitee and it shall notify the Indemnitor of the commencement thereof, the Indemnitor shall be entitled to participate in, and, to the extent that it may wish to assume the defense thereof, with counsel satisfactory to the Indemnitee, and after notice from the Indemnitor to the Indemnitee of its election to assume the defense thereof, the Indemnitor shall not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with any claim giving rise the defense thereof unless (i) the Indemnitee shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is this sentence, (ii) the Indemnitor shall not a party to the Agreement, the Indemnifying Party at its sole cost and expense and with have employed counsel reasonably satisfactory to the Indemnified Party mayIndemnitee to represent the Indemnitee within a reasonable time, upon written notice to (iii) the Indemnified Party, assume Indemnitor and its counsel do not actively and vigorously pursue the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its or (iv) the Indemnitor has authorized the employment of counsel and for the Indemnitee at its own expensethe expense of the Indemnitor; provided, however, that if there the Indemnitee shall have the right to employ counsel to represent it if, in its reasonable judgment, it is advisable for it to be represented by separate counsel because separate defenses are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Partyavailable, or if because a conflict of interest exists between the Indemnifying Party fails Indemnitee and the Indemnitor in respect to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that and in such event the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained such separate counsel shall be paid by the Indemnified Party Indemnitor. In such circumstance, the Indemnitee shall designate the counsel. The Indemnitor will not be liable to the Indemnitee for any settlement of any action or claim without the consent of the Indemnitor and the Indemnifying Party shall be entitled Indemnitor may not unreasonably withhold its consent to participate in (but any settlement. The Indemnitor will not control) consent to entry of any judgment or enter into any settlement or compromise any claim which does not include as an unconditional term thereof the defense giving by the claimant or plaintiff to the Indemnitee of a full release from all liability with respect to such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderlitigation.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the AgreementExcept as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at its sole cost and such Indemnifying Party's own expense and with by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party mayClaim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, upon written it shall, within 30 days after receiving notice to of the Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, assume in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of any such claim or legal proceeding within thirty Third Party Claim, (30i) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim and (ii) the costs and expenses of the Indemnified Party incurred in defending and settling sameconnection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall be entitled to participate reasonably conclude, based upon the written advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the 57 Indemnified Party in (but not control) the conduct of the defense of any such action, with its counsel and at its own expense; provided, however, that if Third Party Claim or (y) there are one or more legal specific defenses available to the Indemnified Party that conflict with which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, or if then the Indemnified Party shall have the right to assume and direct the defense and compromise of such Third Party Claim. In such an event, the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from shall indemnify the Indemnified Party that it believes for the fees and disbursements of counsel to each of the Indemnifying Party has failed to do soand the Indemnified Party. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may assume settle or compromise any claim (unless the defense sole relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full by the party settling or compromising such claim) over the objection of the other; providedPROVIDED, furtherHOWEVER, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may to settlement or compromise shall not be unreasonably withheld. If the Indemnified Party assumes the defense of the claimIn any event, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by except as otherwise provided herein, the Indemnified Party and the Indemnifying Party shall be entitled to participate may each participate, at its own expense, in (but not control) the defense of such claim, with its counsel and at its own expenseThird Party Claim. If the Indemnifying Party thereafter seeks chooses to question the manner in which defend any claim, the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, shall make available to the Indemnifying Party shall have any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the burden receipt of appropriate confidentiality agreements. Notwithstanding anything to prove by the contrary contained in this paragraph (b), in the event prompt action is required with respect to the defense of a preponderance of the evidence that Third Party Claim, the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree shall, subject to renderthe terms and conditions of this Article X, without compensation but with reimbursement for out-of-pocket costs, have the right to each other such assistance as they may reasonably require of each other in order to insure assume the proper and adequate defense of any actionsuch Third Party Claim; PROVIDED, suit or proceedingHOWEVER, whether or not that in the event that the Indemnifying Party subsequently elects to assume the defense of such Third Party Claim, then the provisions set forth in this paragraph (b) shall be applicable and the Indemnifying Party shall, subject to indemnification hereunderthe terms and conditions of this Article X, indemnify the Indemnified Party for any costs and expenses incurred by the Indemnified Party prior to the date the Indemnifying Party assumes control of such Third Party Claim.

Defense. In connection with the event any Third Party shall make a demand or claim giving rise or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters covered by the indemnity hereunder resulting from under this Agreement, or arising out in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or legal proceeding by a person who is not a party to the Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within lawsuit. Within thirty (30) days after written notice of by the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for (the “Notice”) to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its costs sole cost and expenses in defending and settling sameexpense, to retain counsel to defend any such demand, claim or lawsuit; provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall be entitled have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, if (but i) the named parties to any such proceeding (including any interpleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not controlretained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, which authorization will not be unreasonably withheld, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such actiondemand, with its claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel and at its own expense; provided, however, chosen by it that if there are may be one or more legal defenses available to the such Indemnified Party that conflict with which are different from or in addition to those available to the Indemnifying Party, or if which have been asserted by the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes and counsel retained by the Indemnifying Party has failed declines to do soassert those defenses, then, at the election of the Indemnified Party, the Indemnified Indemnifying Party may assume will not have the right to continue the defense of such claim; provideddemand, further, that the claim or lawsuit on behalf of such Indemnified Party may not settle and will reimburse such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of counsels any counsel retained by the Indemnified Party and to undertake the defense. In the event that the Indemnifying Party shall be entitled fail to participate in respond within thirty (but not control30) days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such claimdemand, with claim or lawsuit, as it may in its counsel sole discretion deem proper, at the sole cost and at its own expense. If expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party thereafter seeks on a current basis. Failure to question provide Notice shall not limit the manner in which rights of such party to indemnification, except to the Indemnified Party defended extent the Indemnifying Party’s defense of the action is actually prejudiced by such third-party claim failure. The assumption of the defense or the amount or nature non-assumption of any such settlementthe defense, by the purported Indemnifying Party shall have the burden will not affect such party’s right to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree dispute its obligation to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to provide indemnification hereunder.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the AgreementExcept as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at its sole cost and such Indemnifying Party's own expense and with by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party mayClaim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, upon written it shall, within 30 days after receiving notice to of the Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, assume in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of any such claim or legal proceeding within thirty Third Party Claim, (30i) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim and (ii) the costs and expenses of the Indemnified Party incurred in defending and settling sameconnection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall be entitled to participate reasonably conclude, based upon the written advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in (but not control) the conduct of the defense of any such actionThird Party Claim, with its counsel and at its own expense; provided, however, that if or (y) there are one or more legal specific defenses available to the Indemnified Party that conflict with which are different from or additional to those available to the Indemnifying Party, or if the Indemnifying Party fails and which could be materially adverse to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If then the Indemnified Party assumes shall have the defense of the claimright to be represented by counsel selected by it. In such an event, the Indemnifying Party shall reimburse the Indemnified Party for pay the reasonable fees and disbursements of counsel to the Indemnifying Party or Parties and the Indemnified Party provided that the Indemnifying Party shall not be liable for the fees and expenses of counsels retained more than one counsel for the Indemnified Parties other than local counsel. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim (unless the sole relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full (subject to the Sellers' Basket or the WRF Basket, as applicable) by the party settling or compromising such claim, the settlement or compromise includes a complete release of the other party or parties hereto and, in the case of a settlement or compromise by the Indemnified Party, the Indemnifying Party has abandoned the defense of such Third Party Claim) over the objection of the other, provided, however, that consent to settlement or compromise shall not be unreasonably delayed or withheld. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party shall be entitled to participate may each participate, at its own expense, in (but not control) the defense of such claim, with its counsel and at its own expenseThird Party Claim. If the Indemnifying Party thereafter seeks chooses to question the manner in which defend any claim, the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, shall make available to the Indemnifying Party shall have the burden to prove by a preponderance of the evidence any personnel or any books, records or other documents within its control that the Indemnified Party did not defend are reasonably necessary or settle appropriate for such third-party claim in a reasonably prudent manner. The parties agree to renderdefense, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderthe receipt of appropriate confidentiality agreements.

Defense. In connection with any the case of a Claim involving the assertion of a claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not third party (whether pursuant to a party to the Agreementlawsuit or other legal action or otherwise, a “Third-Party Claim”), the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume take control of the defense and investigation of such Third-Party Claim if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such Third-Party Claim. If the Indemnifying Party assumes the defense of any such claim Third-Party Claim, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party (and separate from counsel to the Indemnifying Party if there is any conflict or divergence of interest between the Indemnifying Party and the Indemnified Party) to conduct the defense of such claims or legal proceeding within thirty (30) days after written notice proceedings and, at the sole cost and expense of the claim is received subject Indemnifying Party, shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a reservation settlement of rights to contest its indemnity obligation and obtain reimbursement or the entry of any judgment arising from any such Third-Party Claim without the prior written consent of the Indemnified Party for its costs and expenses in defending and settling same(which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such actionThird-Party Claim, with its own counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available shall be entitled to settle any Third-Party Claim involving criminal penalties, civil fines or harm without the consent, but at the expense, of the Indemnifying Party, or Party if the Indemnifying Party fails shall unreasonably fail to take reasonable steps necessary do so after being requested to diligently defend do so by the claim after receiving notice from Indemnified Party. If the Indemnifying Party does not notify the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may will assume the defense of such claim; providedThird-Party Claim within thirty (30) days after the Indemnifying Party receives notice of such claim from the Indemnified Party: (a) the Indemnified Party may defend against such Third-Party Claim in such manner as it may deem reasonably appropriate, further, provided that the Indemnified Party may shall not settle consent to a settlement of or the entry of any judgment arising from such claim Third-Party Claim without the prior written consent of the Indemnifying Party, Party (which consent may shall not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees withheld or delayed); and expenses of counsels retained by the Indemnified Party and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claimaction, with its counsel and at its own expense. If Regardless of which Party shall assume the Indemnifying defense of the Third-Party thereafter seeks Claim, the Parties agree to question cooperate fully with one another in connection therewith. Such cooperation shall include the manner in providing of records and information which the Indemnified are relevant to such Third-Party defended such third-party claim or the amount or nature Claim and making employees and officers available on a mutually convenient basis to provide additional information and explanation of any such settlementmaterial provided hereunder and to act as a witness or respond to legal process, in each case to the Indemnifying Party shall have the burden to prove by a preponderance of the evidence extent that the Indemnified Party did not defend being requested to provide records and information or settle such third-party claim in a reasonably prudent manner. The parties agree to render, make employees and officers available can do so without compensation but with reimbursement for out-of-pocket costs, waiving any evidentiary privileges to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderwhich it is entitled.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the AgreementExcept as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at its sole cost and such Indemnifying Party's own expense and with by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party mayClaim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, upon written it shall, within 30 days after receiving notice to of the Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, assume in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of any such claim or legal proceeding within thirty Third Party Claim, (30i) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim and (ii) the costs and expenses of the Indemnified Party incurred in defending and settling sameconnection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall be entitled to participate reasonably conclude, based upon the written advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in (but not control) the conduct of the defense of any such actionThird Party Claim, with its counsel and at its own expense; provided, however, that if or (y) there are one or more legal specific defenses available to the Indemnified Party that conflict with which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, or if then the Indemnified Party shall have the right to assume and direct the defense and compromise of such Third Party Claim insofar as it relates to the Indemnified Party. In such an event, the Indemnifying Party fails shall pay the reasonable fees and disbursements of counsel to take reasonable steps necessary to diligently defend the claim after receiving notice from Indemnifying Party or Parties and the Indemnified Party provided that it believes the Indemnifying Party has failed to do soshall not be liable for the fees and expenses of more than one counsel for the Indemnified Parties other than local counsel. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may assume settle or compromise any claim (unless the defense sole relief payable to a third party in respect of such claim; Third Party Claim is monetary damages that are paid in full by the party settling or compromising such claim and the settlement or compromise includes a complete release of the other party or parties hereto) over the objection of the other, provided, furtherhowever, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may to settlement or compromise shall not be unreasonably withheld. If the Indemnified Party assumes the defense of the claimIn any event, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by except as otherwise provided herein, the Indemnified Party and the Indemnifying Party shall be entitled to participate may each participate, at its own expense, in (but not control) the defense of such claim, with its counsel and at its own expenseThird Party Claim. If the Indemnifying Party thereafter seeks chooses to question the manner in which defend any claim, the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, shall make available to the Indemnifying Party shall have the burden to prove by a preponderance of the evidence any personnel or any books, records or other documents within its control that the Indemnified Party did not defend are reasonably necessary or settle appropriate for such third-party claim in a reasonably prudent manner. The parties agree to renderdefense, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderthe receipt of appropriate confidentiality agreements.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out the case of any claim or legal proceeding by a person who is not a third party to the Agreementclaim, the Indemnifying Party may, at its sole cost and option, control the defense of an Indemnifiable Claim at such Indemnifying Party’s expense and with counsel reasonably satisfactory to the Indemnified Party mayParty. Notwithstanding the foregoing, upon written notice to the Indemnified Party, assume Party shall have the right to retain counsel of its choice at its own expense and participate in the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expenseIndemnifiable Claim; provided, however, that the Indemnifying Party shall pay the fees and disbursements of such separate counsel if (1) the employment of such separate counsel has been specifically authorized in writing by the Indemnifying Party; or (2) the named parties to the proceeding in which such claim, demand, action or cause of action has been asserted include both the Indemnifying Party and such Indemnified Party and, in the reasonable judgment of counsel to such Indemnified Party, there are exists one or more legal good faith defenses that may be available to the Indemnified Party that are in conflict with those available to the Indemnifying Party, Party or if that the Indemnifying Party fails and Indemnified Party have actual material conflicting interests with respect to take reasonable steps necessary to diligently defend such claim, demand, action or course of action. Notwithstanding the claim after receiving notice foregoing, the Indemnifying Party shall not be liable for the fees and disbursements of more than one counsel for all Indemnified Parties in connection with any one proceeding or any similar or related proceedings arising from the same general allegations or circumstances. If the Indemnifying Party does not assume such defense or the Indemnifying Party notifies the Indemnified Party within thirty days that it believes the Indemnifying Party has failed to do sowill not assume such defense, the Indemnified Party may assume control the defense of such claim; provided, further, that claim and may settle the Indemnified Party may not settle such claim without on behalf of and for the prior written consent account and risk of the Indemnifying Party, which consent may not who shall be unreasonably withheldbound by the result. If In all cases, the Indemnified Party assumes party without the right to control the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to Indemnifiable Claim may participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderthe second sentence of this paragraph.

Defense. In connection with If any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who Action is not a party to the Agreementbrought against an Indemnified Party, the Indemnifying Party at its sole cost will be entitled to participate in and expense and to assume the defense thereof to the extent that it may wish, with counsel reasonably satisfactory to such Indemnified Party, and after notice from the Indemnifying Party to such Indemnified Party of the Indemnifying Party’s election to assume the defense thereof, the Indemnifying Party will not be liable to the Indemnified Party may, upon written notice for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof unless the Indemnifying Party fails to assume the defense of such Action to protect the Indemnified Party. Notwithstanding anything to the contrary in this Subsection 10.4(b), the Indemnified Party will be entitled to select its own counsel and assume the defense of any Action brought against it, at the Indemnifying Party’s expense if (i) the court in which such claim Action is pending determines that a conflict of interest exists such that the Indemnifying Party’s counsel is prohibited by such court or legal proceeding within thirty (30) days after written notice of otherwise unable to represent the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled with respect to participate in such Action or (but not controlii) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are is one or more legal defenses available to that could be asserted by the Indemnified Party that conflict with those available could not be asserted by the Indemnifying Party or the Indemnifying Party’s counsel (on the Indemnified Party’s behalf). The expenses of such defense to be paid by the Indemnifying Party shall be limited to the expenses of one law firm in each state in which an action has been filed. As a condition to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so’s obligations hereunder, the Indemnified Party may assume will in good faith cooperate with and assist the Indemnifying Party in the prosecution or defense of such indemnified Action at the expense of the Indemnifying Party. No Indemnifying Party will consent to entry of any judgment or enter into any settlement with respect to an indemnified Action either: (i) without the consent of the Indemnified Party, which consent will not be unreasonably delayed, conditioned or withheld; or (ii) unless such judgment or settlement includes the claimant or plaintiff giving the Indemnified Party an unconditional release from all liability with respect to such Action. No Indemnified Party will consent to entry of any judgment or enter into any settlement of any indemnified Action, the defense of such claim; providedwhich has been assumed by an Indemnifying Party, further, that the Indemnified Party may not settle such claim without the prior written consent of the such Indemnifying Party, which consent may will not be unreasonably delayed, conditioned or withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunder.

Defense. In connection with any claim giving rise to indemnity hereunder resulting Upon receipt of notice under Subsection (a) from or arising out of any claim or legal proceeding by a person who is not a party to the AgreementIndemnitee, the Indemnifying Party will have the duty to either compromise or defend, at its sole cost and own expense and with by counsel (reasonably satisfactory to Indemnitee), such Action. The Indemnifying Party will promptly (and in any event not more than twenty (20) days after receipt of the Indemnified Indemnitee's original notice) notify the Indemnitee in writing that it acknowledges its obligation to indemnify the Indemnitee with respect to the Action pursuant to this Article 8 and of its intention to either compromise or defend such Action. Once the Indemnifying Party may, upon written gives such notice to the Indemnified PartyIndemnitee, assume the Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee's reasonable costs of investigation and cooperation. However, the Indemnitee will have the right to employ separate counsel and to control the defense of any an Action (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses of such claim or legal proceeding within thirty counsel) if: (30i) days after written notice the use of the claim is received subject to counsel chosen by the Indemnifying Party would present such counsel with a reservation conflict of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in interest; (but not controlii) the defense of any actual or potential defendants in, or targets of, such actionAction include both the Indemnifying Party and the Indemnitee, with its counsel and at its own expense; provided, however, the Indemnitee reasonably concludes that if there are one or more may be legal defenses available to the Indemnified Party it that conflict with are different from or additional to those available to the Indemnifying Party, or if Party (in which case the Indemnifying Party fails will not have the right to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that Action on the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, Indemnitee's behalf); (iii) the Indemnifying Party shall reimburse does not employ counsel satisfactory to the Indemnified Party for Indemnitee to represent the Indemnitee within a reasonable fees and expenses time after the Indemnitee's notice of counsels retained by the Indemnified Party and such Action; (iv) the Indemnifying Party shall be entitled denies or fails to participate timely admit its obligation to defend and indemnify the Action; or (v) in (but not control) the defense reasonable opinion of such claim, with its counsel and at its own expense. If to the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlementIndemnitee, the Indemnifying Party shall have claim could result in the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not Indemnitee becoming subject to indemnification hereunder.injunctive relief or relief other than

Defense. In connection the event of a Third Party Claim, the indemnifying party shall either (A) acknowledge and agree in writing that the Third Party Claim is a Claim for which indemnified party has responsibility if such Claim is adversely determined pursuant to this Agreement, or (B) not make the election under (A) or make the election under (A) under a reservation of rights without admitting that the Third Party Claim is a Claim for which indemnified party has responsibility if such Claim is adversely determined pursuant to this Agreement. In the event that the indemnifying party elects (A) above, it shall control the defense, compromise or settlement of such Third Party Claim, with any claim giving rise to indemnity hereunder resulting from or arising out counsel of any claim or legal proceeding by a person who is not a party its choice reasonably acceptable to the Agreement, indemnified party and at the Indemnifying Party at its indemnifying party’s sole cost and expense and with counsel expense, if the indemnifying party, if requested by the indemnified party, has provided evidence reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice indemnified party of the claim is received subject indemnifying party’s financial ability to a reservation of rights to contest its indemnity obligation and obtain reimbursement pay any Damages resulting from Indemnified the Third Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expenseClaim; provided, however, that if there are one the indemnified party may participate therein through separate counsel chosen by it and at its sole cost and expense. If the indemnifying party does not elect pursuant to (A) above, then (xx) the Third Party Claim shall not be deemed to be a claim indemnified by the indemnifying party, and neither party shall have waived any rights to assert that the Third Party Claim is or more legal defenses available is not properly a claim subject to the Indemnified Party that conflict with those available to indemnifying party’s indemnity obligations, (yy) both the Indemnifying Partyindemnifying party and the indemnified party may, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do soat their individual elections, the Indemnified Party may assume participate in the defense of such claim; providedThird Party Claim, furtherbut the indemnifying party will remain responsible for the costs of defense, that the Indemnified Party may not settle such claim without the prior written consent including reasonable attorneys’ fees of the Indemnifying Party, which consent may not indemnified party should the Third Party Claim ultimately be unreasonably withheld. If determined to be subject to the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees indemnifying party’s indemnity obligation; and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not controlzz) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-indemnified party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden right to prove compromise and settle the Third Party Claim on any basis believed reasonable, in good faith, by a preponderance of the evidence that indemnified party, and the Indemnified indemnifying party will be bound thereby should the Third Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree Claim ultimately be determined to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not be subject to indemnification hereunderindemnifying party’s indemnity obligation.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the AgreementExcept as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at its sole cost and such Indemnifying Party’s own expense and with by such Indemnifying Party’s own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party mayClaim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, upon written it shall, within 30 days after receiving notice to of the Third Party Claim (10 days if the Indemnifying Party states in such notice that prompt action is required), notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, assume in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the third Party Claim, or fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of any such claim or legal proceeding within thirty Third Party Claim, (30A) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim (until such defense is assumed by the Indemnifying Party) and (B) the costs and expenses of the Indemnified Party incurred in defending and settling sameconnection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall be entitled to participate reasonably conclude, based upon the written advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in (but not control) the conduct of the defense of any such action, with its counsel and at its own expense; provided, however, that if Third Party Claim or (y) there are one or more legal specific defenses available to the Indemnified Party that conflict with which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, or if then the Indemnified Party shall have the right to assume and direct the defense of such Third Party Claim. In such an event, the Indemnifying Party fails to take shall pay the reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes fees and disbursements of counsel of the Indemnifying Party has failed and one counsel to do soall the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may assume settle or compromise any claim over the defense objection of such claim; the other, provided, however, that consent to settlement or compromise shall not be unreasonably withheld by the Indemnified Party and provided further, that if the Indemnified sole settlement relief payable to a Third Party in respect of such Third Party Claim is monetary damages that are paid in full by the Indemnifying Party, the Indemnifying Party may not settle such claim without the prior written consent of the Indemnifying Indemnified Party. In any event, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claimexcept as otherwise provided herein, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate may each participate, at its own expense, in (but not control) the defense of such claim, with its counsel and at its own expenseThird Party Claim. If the Indemnifying Party thereafter seeks chooses to question the manner in which defend any claim, the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, shall make available to the Indemnifying Party shall have the burden to prove by a preponderance of the evidence any personnel or any books, records or other documents within its control that the Indemnified Party did not defend are reasonably necessary or settle appropriate for such third-party claim in a reasonably prudent manner. The parties agree to renderdefense, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderthe receipt of appropriate confidentiality agreements.

Defense. (i) In connection with any claim giving rise to indemnity hereunder resulting from or arising out the case of any claim or legal proceeding by a person who is not a third party to the Agreementclaim, the Indemnifying Party at may participate in the defense thereof and, if it so chooses and irrevocably acknowledges its sole cost and expense and obligation to indemnify the Indemnified Party therefor, control the defense of an Indemnifiable Claim with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party reasonably believes that (x) a material conflict of interest between the Indemnified Party and the Indemnifying Party with those available respect to the claim or its defense exists or is likely to develop during the pendency of the litigation, and as a result of such conflict, the Indemnifying Party's incentive to defend such claim could reasonably be expected to be materially compromised, or if (y) the claim raises serious issues regarding the integrity or moral character of the Indemnified Party or any of its Affiliates, or of its of their senior management, in its or their capacity as such (which issues are a fundamental element of the claim) then the In- demnified Party shall be entitled to control the defense of the claim in accordance with paragraph (b)(ii) of this Section 9.3, it being understood that the mere allegation of fraud, willful misconduct, bad faith, malfeasance or any similar such claim as part of multiple claims constituting an Indemnifiable Claim, shall not be deemed, in and of itself, to provide the basis for the Indemnified Party's rights as set forth in this clause (y). In all cases, the party without the right to control the defense of the Indemnifiable Claim may participate in the defense at its own expense. In the case of a third party claim, the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from shall inform the Indemnified Party that it believes within 20 days of receiving the written notice seeking indemnification whether the party elects to control the defense and irrevocably acknowledges its obligation to indemnify the Indemnified Party therefor. The Indemnifying Party shall be liable for the reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed not assumed the defense thereof, provided that it either irrevocably acknowledges in writing its indemnity obligations with respect to do so, the Indemnity Claim or it is determined by a court of competent jurisdiction that it is obligated hereunder to provide such indemnification. If the Indemnifying Party disputes its liability with respect to a potential Indemnifiable Claim or the amount thereof (whether or not it desires to defend the Indemnified Party may assume against a third party claim), the defense parties shall endeavor in good faith to settle such dispute. The Indemnifying Party shall not settle or compromise a third party claim or legal proceeding without the prior written consent of such claim; provided, further, that the Indemnified Party, which consent shall not be unreasonably withheld, delayed or conditioned; provided that such prior written consent shall not be required with respect to any Indemnifiable Claim that relates to any item referred to in Sections 9.1(c), (d), (e), (f), (g), (h), or (i), except with respect to any Indemnifiable Claim relating to Remediation of Hazardous Substances that is covered by Section 5.18 shall remain subject in all respects to the terms of Section 5.18. The Indemnified Party may shall not settle such or compromise a third party claim for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party, which consent may shall not be unreasonably withheld, conditioned or delayed. If the Indemnified Indemnifying Party assumes does not assume the defense of any third party claim or litigation resulting therefrom within 20 days after the date it receives notice of such claim from the Indemnified Party, the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including settling such claim or litigation, after giving notice to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate. Notwithstanding anything in this Section 9.3 to the contrary, if for any reason (for example the effect of the limitations set forth in Sections 9.4 or 9.5 or evidence that an Indemnifiable Loss may be attributable to events before or after Closing) there is any uncertainty whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or Purchaser, the parties will (A) cooperate in good faith to determine whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or Purchaser, (B) until such uncertainty is resolved to the mutual satisfaction of the parties, jointly determine who will control the defense and settlement of any such Indemnifiable Claim and how such defense and settlement will be handled, (C) cooperate with each other in the defense and settlement of such Indemnifiable Claim and the exchange of information relevant thereto, (D) unless otherwise agreed, share the out- of-pocket costs of such defense and settlement (including the costs of investigation, response and mitigation) equally until the parties' respective rights to indemnification for such costs are resolved, and (E) treat the defense and settlement of such Indemnifiable Claim as a joint and common defense, including any joint defense agreement which may be entered into by the parties. (ii) In the case of claims described in the proviso to the first sentence of Section 9.3(b)(i), the Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such claim, at the expense of the Indemnifying Party, but the Indemnifying Party will not be bound by any compromise or settlement effected without its consent (which consent shall reimburse the not be unreasonably withheld, conditioned or delayed). The Indemnified Party for shall conduct the defense in good faith and in a commercially reasonable fees manner, and expenses of counsels retained by the Indemnified Party and shall inform the Indemnifying Party periodically, or upon the Indemnifying Party's reasonable request, of the status of the litigation. The Indemnified Party's choice of counsel shall be entitled subject to the consent of the Indemnifying Party, such consent not to be unreasonably withheld or delayed. The Indemnifying Party may participate in (but not control) the defense of such claimthereof, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlementIf, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure preserve existing insurance for a claim against IPC currently maintained by Dynegy, it is necessary to permit Dynegy's insurer to conduct the proper and adequate defense of any actionIPC, suit Purchaser will consider in good faith waiving or proceedingsharing its right to control such defense so that Dynegy's insurance rights are not lost, whether or not subject to indemnification hereunderthe condition that the insurer accepts the tender of the claim without reservation of rights. Notwithstanding anything to the contrary in this Section 9.3(b), any Indemnifiable Claim relating to Hazardous Substances that is covered by Section 5.18 shall remain subject in all respect to the terms of Section 5.18.

Defense. In connection the event any action, suit or proceeding (a "LEGAL ACTION") is brought against an indemnified party, with any claim giving rise respect to which the indemnifying party may have liability under an indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the Agreementagreement contained herein, the Indemnifying Party Legal Action shall, upon the written agreement of the indemnifying party that it is obligated to indemnify under such indemnity agreement, be defended by the indemnifying party and such defense shall include all proceedings on appeal or for review which counsel for the defendant shall deem appropriate. The indemnified party shall have the right to be represented by counsel and accountants, at its sole cost own expense, and expense and with counsel reasonably satisfactory shall be kept fully informed as to such Legal Action at all stages thereof whether or not it is represented by its own counsel. Until the Indemnified Party may, upon written notice to the Indemnified Party, assume indemnifying party shall have so assumed the defense of any such claim Legal Action, or legal proceeding within thirty (30) days after written notice of if the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party indemnified party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense; provided, however, have reasonably concluded that if there are one or more legal likely to be defenses available to the Indemnified Party indemnified party that conflict with are different from or in addition to those available to the Indemnifying Party, or if indemnifying party (in which case the Indemnifying Party fails indemnifying party shall not be entitled to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that Legal Action but shall have the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not right to be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained represented by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and accountants, at its own expense, and shall be kept fully informed as to such Legal Action at all stages thereof whether or not represented by its own counsel), all legal or other expenses reasonably incurred by the indemnified party shall be borne by the indemnifying party. If The indemnifying party shall make available to the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-indemnified party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance and its attorneys and accountants all books and records of the evidence that indemnifying party relating to such Legal Action and the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties hereto agree to render, without compensation but with reimbursement for out-of-pocket costs, render to each other such assistance as they may reasonably require of each other in order to insure facilitate the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereundersuch Legal Action.

Defense. In connection with If any claim giving rise to indemnity hereunder resulting from claim, demand or arising out of liability is asserted by any claim or legal proceeding by a person who is not a third party to the Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the against any Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance right and shall upon the written request of the evidence that Indemnified Party, defend any Actions brought against the Indemnified Party did not defend in respect of any Indemnifiable Claims with counsel of its choice reasonably acceptable to the Indemnified Party and, in the case of a Tax-related Action, tax advisors of its choice reasonably acceptable to the Indemnified Party. In any such action or settle proceeding, the Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at its own expense unless (a) the Indemnifying Party and the Indemnified Party mutually agree in writing to the retention of such counsel, or (b) the named parties to any such suit, action or proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, and in the reasonable judgment of the Indemnified Party, representation of the Indemnifying Party and the Indemnified Party by the same counsel would be inadvisable due to potential conflicts of interests between them. The Parties shall cooperate and may participate in the defense of all third-party claim claims which may give rise to Indemnifiable Claims hereunder. If the Indemnifying Party assumes the defense (i) it shall be conclusively established for purposes of this Agreement that the claims made in a reasonably prudent mannerthe Action are within the scope of and subject to indemnification but only if the Indemnifying Party assumed the defense pursuant to clause (a) above and not clause (b); and (ii) no compromise or settlement of such claims may be effected by the Indemnifying Party without the Indemnified Party's written consent (which consent shall not be unreasonably withheld) unless there is no finding or admission of any violation of legal requirement or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Party, or the exclusive relief provided is monetary damages that are paid in full by the Indemnifying Party. The parties agree If written notice is given to renderan Indemnifying Party of the commencement of any Action and the Indemnifying Party does not, without compensation but within twenty (20) days after the Indemnified Party's written notice is given, give written notice to the Indemnified Party of its election to assume the defense of such Action, the Indemnifying Party shall be bound by any determination made in such Action or any compromise or settlement effected by the Indemnified Party. In connection with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any actionclaim, suit each Party shall make available to the Party controlling such defense, any books, records or proceeding, whether other documents within its control that are reasonably requested in the course of or not subject to indemnification hereundernecessary or appropriate for such defense.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. OF CLAIMS -- The Indemnified Party Company shall be entitled to participate in (but not control) the defense of any such actionIndemnifiable Claim or to assume the defense thereof, with its counsel and at its own expensereasonably satisfactory to Indemnitee; provided, however, that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with an actual or potential conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee shall conclude that there are may be one or more legal defenses available to the Indemnified Party him or her that conflict with are different from or in addition to those available to the Indemnifying PartyCompany or (c) any such representation by such counsel would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee shall be entitled to retain separate counsel (but not more than one law firm plus, if applicable, local counsel with respect to any particular Indemnifiable Claim) at the Company's expense. The Company shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or if pending Indemnifiable Claim effected without the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do soCompany's prior written consent. The Company shall not, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim that Indemnitee is or could have been a party unless such settlement solely involves the Indemnifying Party, which consent may not be unreasonably withheld. If payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense subject matter of such claimIndemnifiable Claim. Neither the Company nor Indemnitee shall unreasonably withhold its consent to any proposed settlement; provided, with its counsel however, that Indemnitee may withhold consent to any settlement that does not provide a complete and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature unconditional release of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderIndemnitee.

Defense. In connection with If any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding action discussed in Section 10.5 is brought against an indemnified party by a person who is not a party to the AgreementThird Party, the Indemnifying indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall will be entitled to participate in (but not control) and to assume the defense of any such actionthereof, with its counsel reasonably acceptable to the indemnified party, to the extent that it may wish, and after notice from the indemnifying Party to such indemnified party of the indemnifying Party’s election to assume the defense thereof, the indemnified party shall have the right to participate, at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume in the defense of such claim; provided, further, provided that the Indemnified indemnifying Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may shall not be unreasonably withheld. If liable to such indemnified party for any legal or other expenses subsequently incurred by the Indemnified Party assumes latter in connection with the defense of thereof unless the claim, the Indemnifying indemnifying Party shall reimburse the Indemnified Party for the reasonable fees has failed to assume and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) diligently prosecute the defense of such claim, with its counsel and at its own expense. If The indemnifying Party will keep the Indemnifying Party thereafter seeks to question indemnified party reasonably informed of the manner in which the Indemnified Party defended such third-party claim or the amount or nature status of any such settlementThird Party action. Notwithstanding any of the foregoing to the contrary, the Indemnifying Party shall have indemnified party will be entitled to select its own counsel and assume the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action brought against it if the indemnifying Party fails to assume and diligently prosecute such defense, the expenses of such defense to be paid by the indemnifying Party. As a condition to the indemnifying Party’s obligations hereunder, the indemnified party will in good faith cooperate with and assist the indemnifying Party in the prosecution or defense of such indemnified claim at no unreasonable expense to the indemnified party. No indemnifying Party shall consent to entry of any judgment or enter into any settlement or compromise with respect to a claim either (a) without the consent of the indemnified party, which consent shall not be unreasonably withheld, or (b) unless such judgment, settlement or compromise involves only the payment of monetary damages by the indemnifying Party (which monetary damages are less than or equal to any cap applicable thereto), does not require any payment by or impose an injunction or other equitable relief or any other obligation upon the indemnified party and includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability with respect to such claim. No indemnified party shall consent to entry of any judgment or enter into any settlement or compromise of any such action, suit or proceedingthe defense of which has been assumed and diligently pursued by an indemnifying Party, whether or without the consent of such indemnifying Party, which consent shall not subject to indemnification hereunderbe unreasonably withheld.

Defense. In connection The Indemnifying Party shall be entitled to assume the defense and control of any action giving rise to an Indemnified Party's claim for indemnification under Article XI unless (x) the Indemnified Party reasonably believes an adverse determination with any respect to the action, lawsuit, investigation, proceeding or other claim giving rise to indemnity hereunder resulting from such claim for indemnification is likely to be materially detrimental to or arising out materially injure the Indemnified Party's future business prospects or (y) the claim seeks an injunction or equitable relief against the Indemnified Party that is likely to have a material adverse effect on the business of any claim or legal proceeding by the Indemnified Party, taken as a person who is not a party to the Agreement, whole. If the Indemnifying Party at its sole cost and expense and with assumes the defense of any Indemnifiable Claim, it shall retain experienced counsel reasonably satisfactory to the Indemnified Party may, upon written notice to and the Indemnified Party, assume Party may participate in the defense of any such claim and employ counsel of its choice for such purpose; provided that the fees and expenses of such separate counsel shall be borne by the Indemnified Party (other than any fees and expenses of such separate counsel that are incurred prior to the date the Indemnifying Party effectively assumes control of such defense). If the Indemnifying Party does not assume such defense, the Indemnified Party may compromise or legal proceeding within thirty (30) days after written notice settle the claim on behalf of and for the account and risk of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party Indemnifying Party, who shall be entitled to participate in (but not control) bound by the defense of any such action, with its counsel and at its own expenseresult; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not (i) shall be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party responsible only for the reasonable fees costs of defense and expenses of counsels retained by the Indemnified Party and the Indemnifying Party (ii) shall be entitled to participate (at its cost and with counsel of its choice) in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner any Action in which the Indemnified Party defended such third-party claim retained the defense thereof under clause (x) or (y) of the amount or nature first sentence of any such settlementthis Section 11.3(b); and provided further, that the Indemnifying Party shall have the burden to prove by a preponderance not be liable for any settlement or compromise of the evidence that any such Action of which the Indemnified Party did has retained the defense, that is effected without its prior written consent (which consent shall not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderbe withheld unreasonably).

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party The Indemnifying Party shall have the right, at its option (subject to the Agreement, the Indemnifying Party limitations set forth in Section 7.2(c) below) and at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party mayown expense, upon by written notice to the Indemnified PartyParty to assume the entire control of, subject to the right of the Indemnified Party to participate (at its expense and with counsel of its choice) in, the defense, compromise or settlement of the Third Party Claim as to which such Notice of Claim has been given, and shall be entitled to appoint a recognized and reputable counsel reasonably acceptable to the Indemnified Party to be the lead counsel in connection with such defense. If the Indemnifying Party is permitted and elects to assume the defense of any a Third Party Claim: (i) the Indemnifying Party shall diligently and in good faith defend such claim or legal proceeding within thirty (30) days after written notice Third Party Claim and shall keep the Indemnified Party reasonably informed of the claim is received subject to a reservation status of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expensedefense; provided, however, that if there are one the Indemnified Party shall have the right to approve any settlement, which approval will not be unreasonably withheld, delayed or more legal defenses available conditioned; provided, that, in the event that the Indemnifying Party provides prior written notice to the Indemnified Party that conflict of any settlement or compromise of, or offer to settle or compromise, any Third Party Claim in full and the Indemnified Party withholds its consent to such settlement or compromise then, in the event indemnification is ultimately determined to be owing to an Indemnified Party hereunder with those respect to such Third Party Claim, in no event shall indemnification be provided to such Indemnified Party in respect of such Third Party Claim in an amount greater than the amount contained in such settlement or compromise of, or offer to settle or compromise, such Third Party Claim; and (ii) the Indemnified Party shall cooperate fully in all respects with the Indemnifying Party in any such defense, compromise or settlement thereof, including, without limitation, the selection of counsel, and the Indemnified Party shall make available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees all pertinent information and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not documents under its control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunder.

Defense. In connection with any claim giving rise If the facts pertaining to indemnity hereunder resulting from or arising out of any claim or legal proceeding a Loss by a person who is not a party to the Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Buyer Indemnified Party may, upon written notice to the or a Company Indemnified Party, assume as the defense of any such claim or legal proceeding within thirty (30) days after written notice case may be, arise out of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Partythird party, or if there is any claim against a third party available by virtue of the Indemnifying Party fails to take reasonable steps necessary to diligently defend circumstances of the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do soLoss, the Indemnified applicable Indemnifying Party may assume the defense or the prosecution thereof by written notice to such Buyer Indemnified Party or Seller Indemnified Party, including the employment of counsel or accountants reasonably satisfactory to such Buyer Indemnified Party or Seller Indemnified Party, at the Indemnifying Party's cost and expense. Such Buyer Indemnified Party or Seller Indemnified Party shall have the right to employ counsel separate from counsel employed by such Indemnifying Party in any such action and to participate therein, but the fees and expenses of such claim; provided, further, that the counsel employed by such Buyer Indemnified Party may or Seller Indemnified Party shall be at its expense. The Indemnifying Party shall not settle be liable for any settlement of any such claim effected without its prior written consent, which shall not be unreasonably withheld. The Indemnifying Party shall not agree to a settlement of any claim without the prior written consent of the Indemnifying Buyer Indemnified Party or Seller Indemnified Party, as the case may be, which consent may will not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, Whether or not the Indemnifying Party chooses to so defend or prosecute such claim, all the parties hereto shall reimburse cooperate in the Indemnified Party for the reasonable fees defense or prosecution thereof and expenses of counsels retained by the Indemnified Party shall furnish such records, information and the testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be entitled subrogated to participate in (but not control) all rights and remedies of the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Buyer Indemnified Party defended such third-party claim or Seller Indemnified Party, as the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they case may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderbe.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out At the request of any claim or legal proceeding by a person who is not a party to the AgreementIndemnified Party, the Indemnifying Party at its sole cost and expense and with shall promptly assume the costs of defense of an Indemnifiable Claim. The Indemnifying Party shall retain experienced counsel reasonably satisfactory to the Indemnified Party mayand thereafter shall control defense of the claim. Notwithstanding the foregoing, upon written notice to the Indemnified Party, Party shall have the right to retain counsel of its choice and control the defense of the Indemnifiable Claim under any of the following circumstances: (i) The Indemnifying Party fails to assume the defense of any such claim or legal proceeding an Indemnifiable Claim within thirty (30) five days after receiving written notice of the claim is received subject existence of the claim; or (ii) The Indemnifying Party agrees to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) assume the defense of an Indemnifiable Claim but either reserves its rights to challenge, or does not upon request acknowledge in writing, its obligation to indemnify the party seeking indemnity with respect to the Indemnifiable Claim; or (iii) The persons against whom the Indemnifiable Claim shall have been brought, asserted or threatened (including any such action, with its impleaded parties) include both the Indemnified Party and the Indemnifying Party and the Indemnified Party is advised by counsel and at its own expense; provided, however, that if there are may be one or more legal defenses available to the Indemnified Party that conflict with are different from or additional to those available to the Indemnifying Party, or if . If the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from does not assume such defense or the Indemnified Party that it believes has the Indemnifying Party has failed right to do socontrol the defense of the Indemnifiable Claim, the Indemnified Party may assume compromise or settle the defense Indemnifiable Claim on behalf of such claim; provided, further, that and for the Indemnified Party may not settle such claim without the prior written consent account and risk of the Indemnifying Party, which consent may not who shall be unreasonably withheldbound by the result. If In all cases, the Indemnified Party assumes party without the right to control the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to Indemnifiable Claim may participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree shall cooperate in the defense of all third party claims which may give rise to render, without compensation but Indemnifiable Claims hereunder. In connection with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any actionclaim, suit each party shall make available to the party controlling such defense, any books, records or proceeding, whether or not subject to indemnification hereunderother documents within its control that are reasonably requested in the course of such defense.

Defense. In connection with If any claim giving rise to indemnity hereunder resulting from claim, demand or arising out of liability is asserted by any claim or legal proceeding by a person who is not a third party to the Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the against any Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance right and shall upon the written request of the evidence that Indemnified Party, defend any Actions brought against the Indemnified Party did not defend in respect of any Indemnifiable Claims with counsel of its choice reasonably acceptable to the Indemnified Party and, in the case of a Tax-related Action, tax advisors of its choice reasonably acceptable to the Indemnified Party. In any such action or settle proceeding, the Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at its own expense unless (a) the Indemnifying Party and the Indemnified Party mutually agree in writing to the retention of such counsel, or (b) the named parties to any such suit, action or proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, and in the reasonable judgment of the Indemnified Party, representation of the Indemnifying Party and the Indemnified Party by the same counsel would be inadvisable due to potential conflicts of interests between them. The Parties shall cooperate and may participate in the defense of all third-party claim claims which may give rise to Indemnifiable Claims hereunder. If the Indemnifying Party assumes the defense, (i) it shall be conclusively established for purposes of this Agreement that the claims made in a reasonably prudent mannerthe Action are within the scope of and subject to indemnification, but only if the Indemnifying Party assumed the defense pursuant to clause (a) above and not clause (b), and (ii) no compromise or settlement of such claims may be effected by the Indemnifying Party without the Indemnified Party's written consent (which consent shall not be unreasonably withheld) unless there is no finding or admission of any violation of legal requirement or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Party, or the exclusive relief provided is monetary damages that are paid in full by the Indemnifying Party. The parties agree If written notice is given to renderan Indemnifying Party of the commencement of any Action and the Indemnifying Party does not, without compensation but within twenty (20) days after the Indemnified Party's written notice is given, give written notice to the Indemnified Party of its election to assume the defense of such Action, the Indemnifying Party shall be bound by any determination made in such Action or any compromise or settlement effected by the Indemnified Party. In connection with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any actionclaim, suit each Party shall make available to the Party controlling such defense, any books, records or proceeding, whether other documents within its control that are reasonably requested in the course of or not subject to indemnification hereundernecessary or appropriate for such defense.

Defense. In connection with If the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party written notice to the AgreementIndemnified Party within 15 days following its receipt of the notice of such claim, elect to assume the Indemnifying Party at its sole cost and expense and with defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own cost and expense; provided, however, that if during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there are may be one or more legal defenses available to the Indemnified Party that conflict with it which are different from or additional to those available to the Indemnifying PartyIndemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or if (c) the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party Indemnity Obligor has failed to do so, the Indemnified Party may assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim; provided, furtherall the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, that information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may not settle have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in 44 connection with any claim that would adversely affect the Indemnified Party without the prior written consent of the Indemnifying Indemnified Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunder.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the Agreement, the The Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to shall have the Indemnified Party mayright, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding Party within thirty (30) days after written of receipt of timely notice from the Indemnified Party in respect of a claim by any Person other than the Parties arising out of or involving a Loss by such Person against an Indemnified Party (other than a Tax Claim asserted against any Landos Indemnified Party) (a “Third Party Claim”), to assume the defense thereof at the expense of the claim is received subject Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to a reservation of rights to contest its indemnity obligation and obtain reimbursement from the Indemnified Party for its costs and expenses in defending and settling sameParty. The Indemnified Party L▇▇▇▇▇ shall be entitled to participate in (but not control) control the defense of any Tax Claim brought against any Landos Indemnified Party. If the Indemnifying Party does not expressly elect to assume the defense of such actionThird Party Claim within the time period and otherwise in accordance with the first sentence of this Section 5.4(b), with its the Indemnified Party shall have the sole right to assume the defense of such Third Party Claim. The party not controlling the defense of the Third Party Claim shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at its own expensethe expense of such party unless, in the written opinion of outside counsel to the Indemnified Party, it is advisable for the Indemnified Party to be represented by separate counsel due to actual or potential conflicts of interest, in which case the Indemnified Party shall have the right to employ counsel to represent it and in that event the reasonable documented out-of-pocket fees and expenses of such separate counsel shall be paid by the Indemnifying Party. The party not controlling the Third Party Claim (the “Non Controlling Party”) shall reasonably cooperate with the party controlling the Third Party Claim (the “Controlling Party”) in such defense and make available to the Controlling Party all witnesses, pertinent records, materials and information in the Non Controlling Party’s possession or under the Non Controlling Party’s control relating thereto as is reasonably required by the Controlling Party; provided, however, that if there are one such actions and cooperation by the Non Controlling Party will not unduly disrupt the operations of the Non Controlling Party’s business or more legal defenses available cause the Non Controlling Party to waive any statutory or common law privileges, breach any confidentiality obligations owed to Third Parties or otherwise cause any confidential information of the Indemnified Non Controlling Party that conflict with those available to the Indemnifying Partybecome public. The Controlling Party shall not, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, Non Controlling Party (which consent may shall not be unreasonably withheld. If , conditioned or delayed), enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third Party Claim; provided, however, that, if an Indemnifying Party is proposing to enter into any settlement or compromise or consent to the entry of any monetary judgment with respect to such Third Party Claims, such consent of Indemnified Party shall not be required if (i) the Indemnifying Party agrees to pay or cause to be paid any amounts payable pursuant to such settlement, compromise or judgment and such settlement, compromise or judgment includes no admission of liability by or other obligation on the part of the Indemnified Party, and (ii) such settlement compromise or judgment includes an unconditional written release by the claimant or plaintiff of the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate from all liability in (but not control) the defense respect of such claim, with its counsel and at its own expense. If the Indemnifying Third Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderClaim.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out Upon receipt of any claim or legal proceeding by a person who is not a party to the Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice under Section 8.3.1 from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlementIndemnitee, the Indemnifying Party shall have the burden duty to prove either compromise or defend, at its own expense and by a preponderance counsel (reasonably satisfactory to Indemnitee, such Action. The Indemnifying Party shall promptly and in any event not more than twenty (20) days after receipt of the evidence Indemnitee's original notice) notify the Indemnitee in writing that it wishes to assume control of the Action pursuant to this Article 8 and of its intention to either compromise or defend such Action. The assumption of the defense of an Action by the Indemnifying Party shall not be construed as an acknowledgement that the Indemnifying Party is liable to indemnify the Indemnitee in respect of the Action, nor shall it constitute a waiver by the Indemnifying Party of any defenses it may assert against any Indemnified Party's claim for indemnification. Once the Indemnifying Party did gives such notice to the Indemnitee, the Indemnifying Party is not defend liable to the Indemnitee for the fees of other counsel or settle any other expenses subsequently incurred by the Indemnitee in connection with such third-party claim in a reasonably prudent mannerdefense, other than the Indemnitee's reasonable costs of investigation and cooperation. The parties agree However, the Indemnitee shall have the right to renderemploy separate counsel and to control the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, without compensation but with reimbursement for out-of-pocket costs, and expenses of such counsel) if: (a) the use of the counsel chosen by the Indemnifying Party would present such counsel with a conflict of interest; (b) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the Indemnitee, and the Indemnitee reasonably concludes that there may be legal defenses available to each other such assistance as they may reasonably require of each other it that are different from or additional to those available to the Indemnifying Party (in order which case the Indemnifying Party shall not have the right to insure assume the proper and adequate defense of any actionsuch Action on the Indemnitee's behalf); (c) the Indemnifying Party does not employ counsel reasonably satisfactory to the Indemnitee to represent the Indemnitee within a reasonable time after the Indemnitee's notice of such Action; or (d) in the reasonable opinion of counsel to the Indemnitee, suit or proceeding, whether or not the claim could result in the Indemnitee becoming subject to indemnification hereunderinjunctive relief or relief other than the payment of Losses that could have a materially adverse effect on the ongoing business of the Indemnitee; provided, however, that in no event shall the Indemnifying Party be obligated to bear the fees, costs and expenses of more than one (1) separate counsel for all of the other Party's Indemnitees in such Action.

Defense. In connection with (a) Promptly after the receipt by any claim giving rise person entitled to indemnity hereunder resulting from or arising out indemnification under Section 5.1 and 5.2 of this Agreement of notice of (i) any claim or legal (ii) the commencement of any action or proceeding, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Stock Purchase Agreement - Page 10 ------------------------ Section 5.1 and 5.2 of this Agreement (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding by a person who is not a party to the Agreement, and shall permit the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the Indemnifying Party in the conduct of the defense of such action. Failure by the Indemnifying Party to notify the Aggrieved Party of its election to defend any such proceeding or action within thirty (30) a reasonable time, but in no event more than 15 days after written notice of thereof shall have been given to the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party Indemnifying Party, shall be entitled deemed a waiver by the Indemnifying Party of its right to participate in defend such action. (but not controlb) If the Indemnifying Party assumes the defense of any such actionclaim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with its counsel and such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its own expense; provided, however, in the defense of such claim or litigation provided that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or if enter into any settlement, except with the written consent of the Aggrieved Party. (c) If the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may shall not assume the defense of any such claim; providedclaim or litigation resulting therefrom, further, that the Indemnified Aggrieved Party may not settle defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the prior written consent of the Indemnifying Party, which consent may shall not be unreasonably withheld. If the Indemnified Party assumes the defense no settlement of the claimclaim or litigation is made, the Indemnifying Party shall promptly reimburse the Indemnified Aggrieved Party for the reasonable fees amount of any judgment rendered with respect to such claim or in such litigation and expenses of counsels retained all expenses, legal or otherwise, as incurred by the Indemnified Aggrieved Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of against such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or litigation. (d) The rights to indemnification hereunder shall apply to claims made by either party against the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance other whereby written notice of the evidence that claim has been made and delivered within the Indemnified Party did not defend or settle such thirdone-party claim in a reasonably prudent manneryear period following the Closing Date unless otherwise provided herein. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunder.Stock Purchase Agreement - Page 11 ------------------------

Defense. In connection with case any claim giving rise to indemnity hereunder resulting from claim, demand or arising out deficiency (a "CLAIM") is asserted or any action is commenced or notice is given of any claim administrative or legal other proceeding by a person who against the person(s) and/or entities seeking indemnity under this SECTION 11 (hereinafter referred to as the "INDEMNITEE") in respect of which such indemnity is not a party sought hereunder (each and all of such persons and entities being hereinafter referred to as the Agreement"INDEMNITOR") pursuant to this SECTION 11, Indemnitee shall give prompt notice thereof in writing to Indemnitor. Within thirty (30) days after receipt of such notice (or prior to such earlier date as any answer in any administrative or other proceeding is due), Indemnitor may give Indemnitee written notice of its election to conduct the Indemnifying Party defense of such Claim at its sole cost and own expense. If Indemnitor has given Indemnitee such notice of election to conduct the defense, Indemnitee shall nevertheless have the right to participate in the defense thereof, but such participation shall be solely at its expense. If Indemnitor shall not notify Indemnitee in writing (within the time hereinabove provided) of its election to conduct the defense of such Claim, Indemnitee may (but need not) conduct (at the expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume of Indemnitor) the defense of any Claim. The party assuming the defense of a Claim hereunder (the "DEFENDING PARTY") shall notify the other party of its intention to settle, compromise or satisfy any such claim Claim and may make such settlement, compromise or legal proceeding satisfaction unless such other party (the "ASSUMING PARTY") shall notify the Defending Party in writing (within thirty (30) days after written receipt of such notice of the claim is received subject intention to a reservation settle, compromise or satisfy) of rights its election to contest assume (at its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not controlsole expense) the defense of any such action, with its counsel Claim and at its own expense; provided, however, that if there are one or more legal defenses available promptly thereafter take appropriate action to implement such defense. The Assuming Party shall indemnify the Indemnified Defending Party that conflict with those available to and hold it harmless against any losses in excess of the Indemnifying Party, or amount of losses the Defending Party would have incurred if the Indemnifying Party fails to take proposed settlement had been agreed upon. Indemnitee shall cooperate with Indemnitor in such defense, at Indemnitor's cost, and Indemnitee shall provide reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense assistance of Indemnitee's employees in connection with such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderdefense.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by If a person who Third Party Claim is not a party to made against an Indemnitee, then the Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party Indemnitor shall be entitled to participate in the defense of the Third Party Claim and, if the Indemnitor so chooses, to assume the defense of the Third Party Claim by providing written notice within ten (but not control10) days of receipt of an Indemnification Notice to the Indemnitor, and such written notice to assume the defense of any claim shall include a certification that the Indemnitor will indemnify the Indemnitee from and against the entirety of any Losses the Indemnitee may suffer resulting from, arising out of, relating to, in the nature of or caused by such action, with its counsel and at its own expenseclaim; provided, howeverthat the Indemnitor shall not be entitled to assume the defense (or continue the defense) (i) unless such claim involves only money damages and does not seek an injunction or other equitable relief, (ii) if such claim relates to or arises in connection with a criminal or quasi criminal proceeding, action, indictment, allegation or investigation, (iii) if the settlement of, or an adverse judgment with respect to, such claim is, in the good faith judgment of the Indemnitee, likely to establish a precedent, custom or practice materially adverse to the continuing business interests of the Indemnitee or the Indemnitee has been advised in writing by counsel that if a reasonable likelihood exists of a some other conflict of interest between the Indemnitee and the Indemnitor, (iv) such Third Party Claim may give rise to Losses which are more than the remaining Escrow Amount at the time such claim is submitted by the Indemnitee, (v) the Indemnitee reasonably believes an adverse determination with respect to the action, lawsuit, investigation, proceeding or other claim giving rise to such claim for indemnification would be detrimental to or injure the Indemnitee’s reputation or future business prospects, or (vi) upon petition by the Indemnitee, the appropriate court rules that the Indemnitor failed or is failing to vigorously prosecute or defend such Third Party Claim. If the Indemnitor so elects to assume the defense of a Third Party Claim, then the Indemnitor shall not be liable to the Indemnitee for legal expenses subsequently incurred by the Indemnitee in connection with the defense of the Third Party Claim unless (A) the Indemnitor shall have failed, or is not entitled, to assume the defense of such Third Party Claim in accordance with this Section 8.6(b), (B) the employment of such counsel has been specifically authorized in writing by the Indemnitor, which authorization shall not be unreasonably withheld, or (C) the named parties to any such action (including any impleaded parties) include both such Indemnitee and the Indemnitor and such Indemnitee shall have been advised in writing by such counsel that there are may be one (1) or more legal defenses available to the Indemnified Party that conflict with those Indemnitee which are not available to the Indemnifying PartyIndemnitor, or available to the Indemnitor the assertion of which would be adverse to the interests of the Indemnitee. If the Indemnitor assumes such defense, then the Indemnitor shall do so through counsel reasonably acceptable to the Indemnitee at the expense of the Indemnitor and the Indemnitee shall have the right to participate in the defense of the Third Party Claim and to employ counsel, at its own expense, separate from the counsel employed by the Indemnitor, it being understood, however, that the Indemnitor shall control such defense, including any settlement or compromise of the Third Party Claim, but no such settlement or compromise may be effected without the Indemnitee’s consent, which will not be unreasonably withheld, conditioned or delayed; provided, however, that the Indemnitee’s consent shall not be required if (1) such settlement is for monetary payment (all of which is indemnifiable by the Indemnifying Indemnitor) only and does not impose injunctive relief or other restrictions of any kind or nature on any Indemnitee and (2) expressly and unconditionally releases the Indemnitee from all Liabilities with respect to such Third Party Claim, without prejudice pursuant to an unconditional term thereof. If the Indemnitor chooses to defend any Third Party Claim, then the Parties shall cooperate in the defense of the Third Party Claim in all reasonable respects. Such cooperation shall include the retention and (upon the Indemnitor’s request) provision to the Indemnitor of records that are reasonably relevant to the Third Party Claim and making employees available on a mutually convenient basis as may be reasonably necessary to provide additional information and explanation of any material provided. If the Indemnitor, within ten (10) days of receipt of an Indemnification Notice relating to a Third Party Claim, chooses not to assume defense of the Third Party Claim or fails to take reasonable steps necessary to diligently defend notify the claim after receiving notice from the Indemnified Party Indemnitee that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume is assuming the defense of such claimclaim or, within a reasonable time after receipt of an Indemnification Notice relating to a Third Party Claim, fails to defend the Third Party Claim actively and in good faith, then the Indemnitee shall have the right to contest, settle or compromise the Third Party Claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnitee shall have the right to pay or settle any Third Party Claim; provided, furtherthat, that in such event it shall waive any right to indemnity therefor by the Indemnified Indemnitor for such Third Party may not settle such claim without Claim or it shall have received the Indemnitor’s prior written consent of the Indemnifying Party, (which consent may will not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim conditioned or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderdelayed).

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out Promptly after receipt by an Indemnified Person of notice of any claim or legal demand or the commencement of any suit, action or proceeding by a person who is any third party with respect to which indemnification may be sought hereunder, such Indemnified Person shall notify in writing the Indemnitor of such claim or demand or the commencement of such suit, action or proceeding, but failure so to notify the Indemnitor shall not a party to relieve the AgreementIndemnitor from any liability which the Indemnitor may have hereunder or otherwise, unless the Indemnitor shall be actually prejudiced by such failure. If the Indemnitor shall so elect, the Indemnifying Party at its sole cost and expense and with Indemnitor shall assume the defense of such claim, demand, action, suit or proceeding, including the employment of counsel reasonably satisfactory to such Indemnified Person, and shall pay the fees and disbursements of such counsel. In the event, however, that such Indemnified Party may, upon written notice Person shall reasonably determine that having common counsel would present such counsel with a conflict of interest or alternative defenses shall be available to an Indemnified Person or if the Indemnified Party, Indemnitor shall fail to assume the defense of the claim, demand, action, suit or proceeding in a timely manner, then such Indemnified Person may employ separate counsel to represent or defend such Person against any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such claim, demand, action, with its counsel suit or proceeding and at its own expensethe Indemnitor shall pay the reasonable fees and disbursements of such counsel; provided, however, that if there are the Indemnitor shall not be required to pay the fees and disbursements of more than one separate counsel for all Indemnified Persons in any jurisdiction in any single action, suit or more legal defenses available to proceeding. For any claim, demand, action, suit or proceeding the Indemnified Party that conflict with those available to defense of which the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do soIndemnitor shall assume, the Indemnified Party may assume Person shall have the defense right to participate therein and to retain its own counsel at such Indemnified Person's own expense (except as otherwise specifically provided in this Section 12.4), so long as such participation does not interfere with the Indemnitor's control of such claim; provided, furtherdemand, that the Indemnified Party may not settle such claim action, suit or proceeding. The Indemnitor shall not, without the prior written consent of the Indemnifying PartyIndemnified Person, which settle or compromise or consent may not be unreasonably withheld. If to the Indemnified Party assumes the defense entry of the any judgment in any pending or threatened claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceedingproceeding in respect of which indemnification may be sought hereunder unless such settlement, whether compromise or consent shall include an unconditional release of such Indemnified Person from all liability arising out of such xxx claim, demand, action, suit or proceeding and would not subject to indemnification hereunderprohibit, restrict or impair the Indemnified Person from engaging in any business.

Defense. In connection with If any claim giving Indemnified Party learns of any matter which may give rise to indemnity hereunder resulting from or arising out of any a claim or legal proceeding by a person who is not a party to for indemnification against an Indemnifying Party under this Article XI, then the Agreement, Indemnified Party shall notify the Indemnifying Party at its sole cost thereof promptly and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon in any event within five (5) Business Days after receiving any written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to from a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expensethird party; provided, however, that if there are one or more legal defenses available to no delay on the part of the Indemnified Party that conflict with those available in notifying the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless, and then solely to the extent that, the Indemnifying Party is materially prejudiced thereby. Once the Indemnified Party has given notice of the matter to the Indemnifying Party, or if the Indemnified Party may, subject to the Indemnifying Party's rights to assume the defense thereof, defend against the matter in any manner it reasonably may deem appropriate. In the event the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from notifies the Indemnified Party (after the date the Indemnified Party has given notice of the matter) that it believes the Indemnifying Party has failed is assuming the defense of such matter, the Indemnifying Party shall defend the Indemnified Party against the matter with counsel of its choice reasonably satisfactory to do sothe Indemnified Party. Notwithstanding the foregoing, the Indemnified Party may assume shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been authorized in writing by the Indemnifying Party, (ii) the Indemnifying Party shall not have employed counsel to fully and properly take charge of the defense of such claim; provided, further, that action within a reasonable time after notice of commencement of the action or (iii) the Indemnified Party shall have reasonably concluded that there are defenses available to it that are different from or additional to those available to one or more of the Indemnifying Parties (in which case the Indemnifying Parties shall not have the right to direct the defense of such action on behalf of the Indemnified Party with respect to such different defenses), in any of which events such fees and expenses shall be borne by the Indemnifying Party. Assumption of the defense of any matter by the Indemnifying Party shall not prejudice the right of the Indemnifying Party to claim at a later date that such third party action is not a proper matter for indemnification pursuant to this Article XI. The Indemnified Party shall not consent to the entry of a judgment or enter into any settlement with respect to any matter which may not settle such give rise to a claim for indemnification without the prior written consent of the Indemnifying Party, which consent may shall not be unreasonably withheldwithheld or delayed. If The Indemnifying Party shall not consent to the entry of a judgment with respect to any matter which may give rise to a claim for indemnification or enter into any settlement which does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party assumes from all Damages with respect thereto, without the defense written consent of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall (not to be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim unreasonably withheld or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderdelayed).

Defense. In connection with If any claim giving rise Proceeding referred to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who in Section 10.10.1 is not a brought against an indemnified party to the Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written it gives notice to the Indemnified Partyindemnifying party of the commencement of such Proceeding, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of indemnifying party will, unless the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall Tax Claim, be entitled to participate in such Proceeding and, to the extent that it wishes (but not controlunless (i) the defense of any indemnifying party is also a party to such actionProceeding and the indemnified party determines in good faith that joint representation would be inappropriate, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available (ii) the indemnifying party fails to provide reasonable assurance to the Indemnified Party that conflict indemnified party of its financial capacity to defend such Proceeding and provide indemnification with those available respect to the Indemnifying Partysuch Proceeding), or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; providedProceeding with counsel satisfactory to the indemnified party and, furtherafter notice from the indemnifying party to the indemnified party of its election to assume the defense of such Proceeding, that the Indemnified Party may not settle indemnifying party will not, as long as it diligently conducts such claim without defense, be liable to the prior written consent indemnified party under this Section 10 for any fees of other counsel or any other expenses with respect to the Indemnifying Partydefense of such Proceeding, which consent may not be unreasonably withheldin each case subsequently incurred by the indemnified party in connection with the defense of such Proceeding, other than reasonable costs of investigation. If the Indemnified Party indemnifying party assumes the defense of a Proceeding, (i) it will be conclusively established for purposes of this Agreement that the claim, claims made in that Proceeding are within the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees scope of and expenses subject to indemnification; (ii) no compromise or settlement of counsels retained such claims may be effected by the Indemnified Party indemnifying party without the indemnified party’s consent unless (A) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other claims that may be made against the indemnified party, and (B) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (iii) the indemnifying party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of the commencement of any Proceeding and the Indemnifying Party shall be entitled indemnifying party does not, within ten days after the indemnified party’s notice is given, give notice to participate in (but not control) the indemnified party of its election to assume the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlementProceeding, the Indemnifying Party shall have indemnifying party will be bound by any determination made in such Proceeding or any compromise or settlement effected by the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderindemnified party.

Defense. In connection with If any claim giving rise of the indemnified parties is made or threatened ------- to indemnity hereunder resulting from be made a defendant in or arising out of any claim or legal proceeding by a person who is not a party to any action or proceeding, judicial or administrative, instituted by any third Person for the Agreementliability under which or the costs or expenses of which any of the indemnified parties is entitled to be indemnified pursuant to Paragraph 18 (any such third party action or proceeding being referred to as an "Indemnification Claim"), the Indemnifying Party indemnified party or parties shall give prompt notice thereof to the indemnifying party; provided -------- that the failure to give such notice shall not affect the indemnified party or parties' ability to seek indemnification hereunder unless such failure has materially and adversely affected the indemnifying party or parties' ability to prosecute successfully an Indemnification Claim. Each indemnified party shall permit the indemnifying party, at its sole cost and expense and with counsel reasonably satisfactory own expense, to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of any litigation to which this Paragraph 18.4 may be applicable, by counsel reasonably satisfactory to the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party indemnified party or parties; provided, -------- that the indemnified party or parties shall be entitled at any time, at its or their own cost and expense (which expense shall not be recoverable from the indemnifying party unless the indemnifying party is not adequately representing or, because of a conflict of interest, may not adequately represent, the indemnified party or parties' interests), to participate in (but such claim, action or proceeding and to be represented by attorneys of its or their own choosing. If the indemnified party or parties elects to participate in such defense, such party or parties will cooperate with the indemnifying party in the conduct of such defense. The indemnified party or parties may not control) concede, settle or compromise any Indemnification Claim without the consent of the indemnifying party. The indemnifying party, in the defense of any such actionclaim or litigation, shall not, except with its counsel the approval of each indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party or parties of a full and at its own expense; provided, however, that if there are one or more legal defenses available complete release from all liability in respect to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderlitigation.

Defense. In connection with If the facts pertaining to a Loss arise out of the claim of any third party, or if there is any claim giving rise to indemnity hereunder resulting from or arising out against a third party available by virtue of any claim or legal proceeding by a person who is not a party to the Agreementcircumstances of the Loss, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party Indemnity Obligor may, upon by giving written notice to the Indemnified PartyParty within twenty (20) days following its receipt of the notice of such claim, elect to assume the defense or the prosecution thereof, including the employment of any such claim counsel or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and accountants at its own cost and expense; provided, however, that the Indemnity Obligor may assume the defense or prosecution thereof only if there are one or more legal defenses available (i) it provides evidence reasonably acceptable to the Indemnified Party that conflict with those available it will have the financial resources to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from and satisfy its indemnification obligations; (ii) it obtains counsel which is reasonably satisfactory to the Indemnified Party; (iii) the third party claim involves only money damages and does not seek an injunction or other equitable relief; (iv) it conducts the defense of the claim actively and diligently; and (v) it keeps the Indemnified Party that it believes informed of all material developments and events relating thereto. Notwithstanding the Indemnifying Party has failed to do soforegoing, for the avoidance of doubt, the Indemnified Party may Indemnity Obligor shall have no obligation to defend any claim of any third party alleging that any Current Customer Deliverable infringes any Intellectual Property of a third party to the extent the Plaintiff or Counterclaim-Plaintiff does not specifically allege in writing that the Current Customer Deliverables infringe such Intellectual Property (even if the Indemnity Obligor has previously elected to assume the defense of such claim, provided that if the Indemnity Obligor elects to discontinue its defense of any such claim pursuant to this sentence, the Indemnity Obligor must provide prompt notice to the Indemnified Parties of its election to discontinue the defense of such claim). The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party’s own expense. Whether or not the Indemnity Obligor chooses so to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trials as may be reasonably requested in connection therewith. The Indemnity Obligor shall have the right to settle, adjust or compromise such claim; provided, furtherhowever, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may shall not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party liable or obligated for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend adjustment or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense compromise of any action, suit or proceeding, whether or not subject to indemnification hereundersuch claim effected without its prior written consent.

Defense. In connection with If the facts relating to a Loss or Company Loss arise out of a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the Loss or Company Loss, the Indemnity Obligor shall, by giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party written notice to the AgreementIndemnified Party within 15 days following its receipt of the notice of such claim, assume the Indemnifying Party defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its sole cost and expense expense; PROVIDED, HOWEVER, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss or Company Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and with to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall Indemnity Obligor that there may be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with it which are different from or additional to those available to the Indemnifying PartyIndemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or if (c) the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party Indemnity Obligor has failed to do so, the Indemnified Party may assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor defends or prosecutes such claim; provided, furtherall the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, that information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss or Company Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may not settle have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the prior written consent of the Indemnifying Indemnified Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunder.

Defense. In connection Promptly after receipt by an Indemnified Party of notice of a possible action, suit, proceeding or claim referred to in Section 7.01 hereof, such Indemnified Party, if a claim in respect thereof is to be made against the Indemnifying Party under such Section, shall provide the Indemnifying Party with written particulars thereof; provided that failure to provide the Indemnifying Party with such particulars shall not relieve such Indemnifying Party from any claim giving rise liability which it might have on account of the indemnity provided for in this Article Seven except insofar as such failure shall prejudice such Indemnifying Party. The Indemnified Party shall also provide to indemnity hereunder resulting from or arising out the Indemnifying Party copies of all relevant documentation and, unless the Indemnifying Party assumes the defence thereof, shall keep such Indemnifying Party advised of the progress thereof and will discuss with the Indemnifying Party all significant actions proposed. An Indemnifying Party shall be entitled, at its own expense, to participate in (and, to the extent that it may wish, to assume) the defence of any such action, suit, proceeding or claim or legal proceeding but such defence shall be conducted by a person who is counsel of good standing approved by the Indemnified Party, such approval not a party to be unreasonably withheld. Upon the AgreementIndemnifying Party notifying the Indemnified Party of its election so to assume the defence and retaining such counsel, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory shall not be liable to the Indemnified Party mayfor any legal or other expenses subsequently incurred by it in connection with such defence other than for reasonable costs of investigation. If such defence is assumed by the Indemnifying Party, upon written notice it shall, through the course thereof, provide copies of all relevant documentation to the Indemnified Party, assume the defense of any keep such claim or legal proceeding within thirty (30) days after written notice Indemnified Party advised of the claim is received subject to a reservation of rights to contest its indemnity obligation progress thereof and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, discuss with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the all significant actions proposed. No Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim shall enter into any settlement without the prior written consent of the Indemnifying Indemnified Party, which but such consent may shall not be unreasonably withheld. If such defence is not assumed by the Indemnified Party assumes the defense of the claimIndemnifying Party, the Indemnifying Party shall reimburse not be liable for any settlement made without its consent, but such consent shall not be unreasonably withheld. Notwithstanding the foregoing, an Indemnified Party shall have the right, at the Indemnifying Party's expense, to employ counsel of its own choice in respect of the defence of any such action, suit, proceeding or claim if (a) the employment of such counsel has been authorized by the Indemnifying Party in connection with such defence; or (b) counsel retained by the Indemnifying Party or the Indemnified Party for the reasonable fees and expenses of counsels retained by shall have advised the Indemnified Party and that there may be legal defences available to it which are different from or in addition to those available to the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlementevent and to that extent, the Indemnifying Party shall not have the burden right to prove by a preponderance assume or direct the defence on behalf of the evidence Indemnified Party) or that there may be a conflict of interest between the Indemnifying Party and the Indemnified Party; or (c) the Indemnifying Party did shall not defend or settle have assumed such third-party claim in defence and employed counsel therefor within a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other reasonable time after receiving notice of such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit suit, proceeding or proceeding, whether or not subject to indemnification hereunderclaim.

Defense. In connection with any claim giving which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to other than the AgreementIndemnified Party, the Indemnifying Party Party, at its the sole cost and expense of the Indemnifying Party (or, in the case of the Stockholders' Representative, at the sole cost and with counsel reasonably satisfactory to expense of the Indemnified Party Stockholders), may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party (or in the case of the Stockholders' Representative, the Stockholders) to indemnify the Indemnified Party with respect to all elements of such claim. If the Indemnifying Party assumes the defense of any such claim is received subject or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party (or in the case of the Stockholders' Representative, the sole cost and expense of the Stockholders) shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a reservation settlement of, or the entry of rights to contest its indemnity obligation and obtain reimbursement from any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Party for its costs and expenses in defending and settling same(which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense; provided, however, that if there are one . If the Indemnifying Party does not assume the defense of any such claim or more legal defenses available to litigation resulting therefrom within 30 days after the date such claim is made: (a) the Indemnified Party that conflict with those available may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, on such terms as the Indemnified Party may assume the defense of such claim; provideddeem appropriate, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claimaction, with its counsel and at its own expenseexpense (or in the case of the Stockholders' Representative, at the expense of the Stockholders). If the Indemnifying Party (or, in the case of the Stockholders' Representative, the Stockholders) thereafter seeks to question the manner in which the Indemnified Party defended such third-third party claim or the amount or nature of any such settlement, the Indemnifying Party (or, in the case of the Stockholders, the Stockholders' Representative) shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-third party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunder.

Defense. In connection with any claim giving rise The indemnifying party will be entitled to indemnity hereunder resulting from or arising out of any claim or legal proceeding participate in, and to ------- the extent that it may elect by a person who is not a party written notice delivered to the Agreementindemnified party promptly after receiving the notice described in Section 6.6, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any third party claim, action or suit, with counsel satisfactory to such claim or legal proceeding within thirty (30) days after written notice of indemnified party; but, if the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses defendants in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel action include both the indemnified party and at its own expense; provided, however, the indemnifying party and the indemnified party has reasonably concluded that if there are one or more may be legal defenses available to the Indemnified Party it and/or other indemnified parties that conflict with are different from or additional to those available to the Indemnifying Partyindemnifying party, the indemnified party or if parties will have the Indemnifying Party fails right to take reasonable steps necessary select separate counsel to diligently defend assert such legal defenses and otherwise to participate in the claim after receiving defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the Indemnified Party that it believes the Indemnifying Party has failed indemnifying party to do so, the Indemnified Party may such indemnified party of its election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 6 for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (a) the indemnified party has employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to the next preceding sentence, (b) the indemnifying party has not employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the suit, action or proceeding or (c) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party; and except that, if clause (a) or (c) is applicable, such liability will be only in respect of the counsel referred to in such clause (a) or (c). The indemnifying party will not agree to any settlement of a third party claim; provided, furtheraction or suit that does not include a full release of any further liability on the party of the indemnified party with respect to all matters at issue. The indemnifying party will not agree to any settlement of a third party claim, that the Indemnified Party may not settle such claim action or suit without the prior indemnified party's written consent; but the indemnified party will not unreasonably withhold its consent of the Indemnifying Party, which consent may not to any settlement solely for monetary damages to be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained paid by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderindemnifying party.

Defense. In connection with If any claim giving rise such action is brought against an indemnified party, the indemnifying Party will be entitled to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party participate in and to assume the defense thereof to the Agreementextent that it may wish, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party maysuch indemnified party, upon by giving written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding indemnified party within thirty (30) days after of its receipt of written notice of such action from the claim is received subject indemnified party, and after such notice from the indemnifying Party to a reservation such indemnified party of rights the indemnifying Party’s election to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified assume the defense thereof, the indemnifying Party shall not be liable to such indemnified party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof unless the indemnifying Party has failed to assume the defense of such claim and to employ counsel reasonably satisfactory to such indemnified party. Notwithstanding any of the foregoing to the contrary, the indemnified party will be entitled to participate in select its own counsel and assume the defense of any action brought against it if (but not controli) the indemnified party has been advised by counsel that an actual conflict of interest exists between the indemnifying Party and the indemnified party in connection with the defense of such action or proceeding, (ii) such action or proceeding seeks injunctive relief with respect to the indemnified claim or is part of a criminal proceeding or (iii) the indemnifying Party fails to select counsel reasonably satisfactory to the indemnified party, in each case, with the expenses of such defense to be paid by the indemnifying Party. As a condition to the indemnifying Party’s obligations hereunder, the indemnified party will in good faith cooperate with and assist the indemnifying Party in the prosecution or defense of such indemnified claim at no unreasonable out of pocket expense to the indemnified party. No indemnifying Party shall consent to entry of any judgment or enter into any settlement with respect to a claim either (a) without the consent of the indemnified party, which consent shall not be unreasonably withheld, or (b) unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability with respect to such claim. No indemnified party shall consent to entry of any judgment or enter into any settlement of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; providedwhich has been assumed by an indemnifying Party, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying such indemnifying Party, which consent may shall not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunder.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out the case of any claim or legal proceeding by a person who is not a third party to the Agreementclaim, the Indemnifying Party at may participate in the defense thereof and, if it so chooses and acknowledges its sole cost and expense and obligation to indemnify the Indemnified Party therefore, control the defense of an Indemnifiable Claim with counsel reasonably satisfactory to the Indemnified Party. In all cases, the party without the right to control the defense of the Indemnifiable Claim may participate in the defense at its own expense. In the case of a third party claim, the Indemnifying Party may, upon shall inform the Indemnified Party within 14 days of receiving the written notice seeking indemnification whether the party elects to control the defense and acknowledges its obligation to indemnify the Indemnified Party therefor. The Indemnifying Party shall be liable for the reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof, provided that it either acknowledges in writing its indemnity obligations with respect to the Indemnity Claim or it is determined by a court of competent jurisdiction that it is obligated hereunder to provide such indemnification. If the Indemnifying Party disputes its liability with respect to a potential Indemnifiable Claim or the amount thereof (whether or not it desires to defend the Indemnified Party against a third party claim), the parties shall endeavor in good faith to settle such dispute. The Indemnifying Party shall not settle or compromise a third party claim or legal proceeding without the prior written consent of the Indemnified Party, assume which consent shall not be unreasonably withheld or delayed; provided that such prior written consent shall not be required with respect to any Indemnifiable Claim that is an Excluded Liability, except that any Indemnifiable Claim relating to Hazardous Substances remain subject in all respect to the defense terms of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling sameSection 5.18. The Indemnified Party shall be not settle or compromise a third party claim for which it is entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim indemnification hereunder without the prior written consent of the Indemnifying Party, which consent may shall not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expenseconditioned or delayed. If the Indemnifying Party thereafter seeks to question does not assume the manner in which defense of any third party claim or litigation resulting therefrom within 14 days after the date it receives notice of such claim from the Indemnified Party, the Indemnified Party defended may defend against such third-party claim or litigation in such manner as it may deem appropriate, including settling such claim or litigation, after giving notice to the amount Indemnifying Party, on such terms as the Indemnified Party may deem appropriate. Notwithstanding anything in this Section 9.3 to the contrary, if for any reason (for example the effect of the limitations set forth in Sections 9.4 or nature 9.5 or evidence that an Indemnifiable Loss may be attributable to events before or after Closing) there is any uncertainty whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or the Purchaser Indemnitors, the parties will (A) cooperate in good faith to determine whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or the Purchaser Indemnitors, (B) until such uncertainty is resolved to the mutual satisfaction of the parties, jointly determine who will control the defense and settlement of any such settlementIndemnifiable Claim and how such defense and settlement will be handled, (C) cooperate with each other in the Indemnifying Party shall have defense and settlement of such Indemnifiable Claim and the burden to prove by a preponderance exchange of information relevant thereto, (D) unless otherwise agreed, share the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costscosts of such defense and settlement (including the costs of investigation, to each other such assistance as they may reasonably require of each other in order to insure response and mitigation) equally until the proper and adequate defense of any action, suit or proceeding, whether or not subject parties' respective rights to indemnification hereunderfor such costs are resolved, and (E) treat the defense and settlement of such Indemnifiable Claim as a joint and common defense pursuant to the Joint Defense and Common Interest Agreement dated as of October 8, 2003, as amended, between Dynegy and Exelon.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party Subject to the Agreementlimitations set forth in this Section 11.5(b), in the Indemnifying event of a Third Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlementClaim, the Indemnifying Party shall have the burden right (exercisable by written notice to prove by the Indemnified Party within ten (10) days after the Indemnified Party has given a preponderance Claim Notice of the Third Party Claim) to conduct and control, through counsel of its choosing that is reasonably acceptable to the Indemnified Party and at the Indemnifying Party’s own cost and expense, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall provide indemnification to the Indemnified Party in respect thereof, and (ii) if requested by the Indemnified Party, has provided evidence reasonably satisfactory to the Indemnified Party of the Indemnifying Party’s financial ability to pay any Loss and Expense resulting from the Third Party Claim; provided, that the Indemnified Party did may participate, through separate counsel chosen by it and at its own cost and expense, in the defense of the Third Party Claim. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not defend have given notice of its election to conduct and control the defense of the Third Party Claim within such 10-day period, (B) the Indemnifying Party shall fail to conduct such defense diligently, (C) the Indemnified Party shall reasonably determine that use of counsel selected by the Indemnifying Party to represent the Indemnified Party would present such counsel with a conflict of interest, or settle (D) the Third Party Claim is for injunctive, equitable or other non-monetary relief against the Indemnified Party, then the Indemnified Party shall have the right to control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In any event, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective affiliates and representatives to, cooperate fully in connection with the defense or prosecution of any Third Party Claim, including furnishing such third-records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. In addition, the party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure controlling the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderThird Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect thereto.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party Subject to the Agreementremaining provisions hereof, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense receipt of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject a Claim Notice relating to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Third Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel Claim and at its expense, defend such claim in its own expense; providedname or, howeverif necessary, that if there are one or more legal defenses available to in the Indemnified name of the Claiming Party. The Claiming Party that conflict will cooperate with those and make available to the Indemnifying Party such assistance and materials as may be reasonably requested of the Claiming Party, or if and the Claiming Party shall have the right, at its expense, to participate in but not control the defense thereof. The Indemnifying Party fails shall have the right to take reasonable steps necessary settle and compromise any such claim with respect to diligently defend the claim after receiving notice from the Indemnified Party that which it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume controls the defense of such claim; provided, further, that only with the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Claiming Party, which consent may shall not be unreasonably withheld. If the Indemnified proceeding involves a matter solely of concern to the Claiming Party assumes in addition to the claim for which indemnification under this Article X is being sought, the Claiming Party shall have the right to control the defense and settlement of such additional claim in its own discretion and with its own counsel. If a firm written offer is made to settle any such Third Party Claim which offer includes a complete release of the claim, Claiming Party and its affiliates from any further liability in respect thereof and the Indemnifying Party shall reimburse proposes to accept such settlement and agrees in writing to indemnify the Indemnified Claiming Party for all Losses related thereto and the reasonable fees and expenses of counsels retained by the Indemnified Claiming Party and refuses to consent to such settlement, then: (i) the Indemnifying Party shall be entitled to participate in (but not control) excused from, and the Claiming Party shall be solely responsible for, all further defense of such claim, with its counsel and at its own expense. If Third Party Claim; (ii) the maximum liability of the Indemnifying Party thereafter seeks relating to question the manner in which the Indemnified such Third Party defended such third-party claim or Claim shall be the amount or nature of any the proposed settlement if the amount thereafter recovered from the Claiming Party on such Third Party Claim is greater than the amount of the proposed settlement; and (iii) the Claiming Party shall pay all attorneys' fees and legal costs and expenses incurred after the rejection of such settlement by the Claiming Party, but if the amount thereafter recovered by such third party from the Claiming Party is less than the amount of the proposed settlement, the Claiming Party shall be reimbursed by the Indemnifying Party shall have for such attorneys' fees and legal costs and expenses up to a maximum amount equal to the burden to prove difference between the amount recovered by a preponderance such third party and the amount of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderproposed settlement.

Defense. In connection with (a) If the facts pertaining to a Loss arise out of the claim of any third party, or if there is any claim giving rise to indemnity hereunder resulting from or arising out against a third party available by virtue of any claim or legal proceeding by a person who is not a party to the Agreementcircumstances of the Loss, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party Indemnity Obligor may, upon by giving written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding Party within thirty (30) days after written following its receipt of the notice of the claim is received subject such claim, elect to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) assume the defense or the prosecution thereof, including the employment of any such action, with its counsel and or accountants at its own cost and expense; provided, however, that if there are one or more legal defenses available to during the interim the Indemnified Party that conflict shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with those available respect to the Indemnifying Loss; provided further that the reasonable costs and expenses incurred by such Indemnified Party in protecting against further damage will be considered a Loss. (b) The Indemnified Party shall have the right to participate in such defense and to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be not be considered a Loss and shall be at the Indemnified Party’s own expense unless (A) the counsel selected by the Indemnity Obligor shall be unwilling or unable to represent the Indemnified Party, or if (B) a legal conflict of interest exists between the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from Indemnity Obligor and the Indemnified Party such that it believes joint representation would be inappropriate, or (C) a court of competent jurisdiction determines that the Indemnifying Party has Indemnity Obligor failed or is failing to do sovigorously prosecute or defend such claims, in each of which cases the reasonable fees and expenses of separate counsel engaged by the Indemnified Party may assume shall also be a Loss for which indemnity is provided by the Indemnity Obligor. (c) Whether or not the Indemnity Obligor chooses so to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trials as may be reasonably requested in connection therewith. If the Indemnity Obligor assumes the defense or prosecution of such claim, the Indemnity Obligor shall have the right to settle the claim if such settlement involves only money damages; provided, further, provided that the Indemnified Party may not settle such claim without Indemnity Obligor shall obtain the prior written consent of the Indemnifying PartyIndemnified Party before entering into any settlement of a claim if, as a result of such settlement, injunctive or other equitable relief will be imposed against the Indemnified Party or if such settlement does not expressly and unconditionally release the Indemnified Party from all liabilities and obligations with respect to such claim, without prejudice. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent, which consent may shall not be unreasonably withheldwithheld or delayed. If In the event and to the extent of payment by the Indemnity Obligor to the Indemnified Party assumes the defense in connection with any Loss arising out of the a third party claim, the Indemnifying Party Indemnity Obligor shall reimburse be subrogated to and shall stand in the place of the Indemnified Party for to the extent of such payment as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim, and the reasonable fees and expenses of counsels retained incurred by the Indemnified Party and in providing such cooperation shall also be a Loss for which indemnity is provided by the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderIndemnity Obligor.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by If a person who Third Party Claim is not a party to the Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to made against the Indemnified Party, assume then the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Indemnifying Party shall be entitled to participate in (but not control) the defense of any such actionthereof and, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails so chooses, to take assume the defense thereof with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. The Indemnifying Party shall be liable for the reasonable steps necessary to diligently defend the claim after receiving notice from fees and expenses of counsel employed by the Indemnified Party that it believes for any period during which the Indemnifying Party has failed not assumed the defense thereof. If the Indemnifying Party so elects to do so, the Indemnified Party may assume the defense of such claim; provideda Third Party Claim, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, then the Indemnifying Party shall reimburse not be liable to the Indemnified Party for the reasonable fees and expenses of counsels retained counsel subsequently incurred by the Indemnified Party and in connection with the defense thereof; provided, however, that (i) prior to assuming the defense of such Third Party Claim, the Indemnifying Party shall be entitled provide to participate in the Indemnified Party an undertaking stating that such Indemnifying Party is able to and will assume the payment of all defense fees and costs and (but not controlii) the Indemnifying Party’s assumption of the defense of such claimThird Party Claim shall not signify any agreement, with its counsel and at its own expenseobligation or commitment on the part of the Indemnifying Party to assume or pay any amount awarded to a claimant in respect of such Third Party Claim. If the Indemnifying Party thereafter seeks to question the manner in which assumes such defense, then the Indemnified Party defended such third-party claim or shall have the amount or nature of any such settlementright to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood, however, that the Indemnifying Party shall have control such defense. If the burden Indemnifying Party chooses to prove by defend any Third Party Claim, then the Parties shall cooperate in the defense or prosecution of such Third Party Claim. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records that are reasonably relevant to such Third Party Claim, and making employees available on a preponderance mutually convenient basis to provide additional information and explanation of any material provided hereunder. If the evidence that Indemnifying Party, within a reasonable time after receipt of an Indemnification Notice relating to a Third Party Claim, chooses not to assume defense of a Third Party Claim or fails to defend such Third Party Claim actively and in good faith, then the Indemnified Party did not defend shall (upon further notice) have the right to defend, compromise or settle of such third-party claim in a reasonably prudent manner. The parties agree Third Party Claim or consent to render, without compensation but the entry of judgment with reimbursement for out-of-pocket costs, respect to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderThird Party Claim.

Defense. In connection with If the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor shall, by giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party written notice to the AgreementIndemnified Party within 15 days following its receipt of the notice of such claim, assume the Indemnifying Party at its sole cost and expense and with defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own cost and expense; provided, however, that if during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there are may be one or more legal defenses available to the Indemnified Party that conflict with it which are different from or additional to those available to the Indemnifying Party, or if the Indemnifying Party fails Indemnity Obligor and counsel to take reasonable steps necessary to diligently defend the claim after receiving notice from each of the Indemnified Party and the Indemnity Obligor shall have advised such parties that it believes representation of both parties by the Indemnifying Party same counsel would be inappropriate due to actual or potential differing interests between them or (c) the Indemnity Obligor has failed to do so, the Indemnified Party may assume the defense of such action. Whether or not the Indemnity Obligor defends or prosecutes such claim; provided, furtherall the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, that information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may not settle have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the prior written consent of the Indemnifying Indemnified Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunder.

Defense. In connection with any claim giving rise So long as the conditions set forth in Section 8.4(a)(i) for the Indemnifying Party to indemnity hereunder resulting from or arising out assume the defense of any claim or legal proceeding by a person who Third Party Claim are and remain satisfied and the Indemnifying Party is not a party to the Agreementvigorously defending such Third Party Claim, the Indemnifying Party may conduct the defense of the Third Party Claim to the extent permitted by this Agreement. The Indemnified Party may retain separate co-counsel at its sole cost and expense to represent it in connection with the Third Party Claim, and the Indemnifying Party shall cooperate, and cause the counsel selected by the Indemnifying Party to cooperate, with such co-counsel in connection with the response, defense and settlement of the Third Party Claim and any related suit or proceeding. If there exists or is reasonably satisfactory likely to the Indemnified Party mayexist a conflict of interest that would make it inappropriate, upon written notice as advised in writing by outside counsel to the Indemnified Party, assume for the defense of any such claim or legal proceeding within thirty (30) days after written notice of same counsel to represent both the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The the Indemnifying Party, then the Indemnified Party shall be entitled to participate retain one separate counsel in (but not control) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to each jurisdiction for which the Indemnified Party that conflict with those available reasonably determines counsel is required, which counsel shall be reasonably acceptable to the Indemnifying Party, or if at the expense of the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Party. The Indemnifying Party has failed to do soshall not, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed), admit any Liability with respect to, settle, compromise or discharge the Third Party Claim if the admission, settlement, compromise or discharge (i) imposes anything, including the imposition of an injunction or other equitable relief upon the Indemnified Party, other than monetary damages fully indemnified and paid by the Indemnifying Party, which consent may not (ii) does or would reasonably be unreasonably withheld. If expected to interfere with or adversely affect the business, operations or assets of the Indemnified Party assumes or any of its Affiliates, (iii) does not include an unconditional provision whereby the plaintiff or claimant in the matter completely and unconditionally releases the Indemnified Party and its Affiliates from all Liability with respect to such matter, with prejudice, (iv) involves Taxes or (v) would result in the finding or admission of any violation of Law or Governmental Order by the Indemnified Party. With respect to the defense of any Third Party Claim, the party responsible for the defense of the Third Party Claim shall, to the extent reasonably requested by the other party, keep such other party informed as to the status of such claim, including all settlement negotiations and offers and shall: (A) conduct the defense of the Third Party Claim actively and vigorously and keep the other Party fully informed of material developments in the Third Party Claim at all stages thereof, (B) promptly submit to the other Party copies of all pleadings, responsive pleadings, motions and other similar legal documents and papers received or filed in connection therewith, (C) permit the other Party and its counsel to confer on the conduct of the defense thereof, and (D) permit the other Party and its counsel an opportunity to review and comment on, which comments the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall reasonably consider, all legal papers to be entitled submitted prior to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereundertheir submission.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the AgreementExcept as otherwise provided herein, the ------- Indemnifying Party may elect to compromise or defend, at its sole cost and such Indemnifying Party's own expense and with by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party mayClaim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, upon written it shall, within 30 days after receiving notice to of the Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, assume in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of any such claim or legal proceeding within thirty (30) days after written notice of Third Party Claim, the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim including the costs and expenses of the Indemnified Party incurred in defending and settling sameconnection therewith. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall be entitled to participate reasonably conclude, based upon the written advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in (but not control) the conduct of the defense of any such actionThird Party Claim, with its counsel and at its own expense; provided, however, that if or (y) there are one or more legal specific defenses available to the Indemnified Party that conflict with which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, then the Indemnified Party shall have the right to be represented by counsel selected by it. In such an event, the reasonable fees and disbursements of a single counsel to the Indemnified Party shall be included in the loss suffered by the Indemnified Party in respect of such Third Party Claim. Whether or if not the Indemnifying Party fails to take reasonable steps necessary to diligently defend shall have assumed the claim after receiving notice from the Indemnified defense of a Third Party that it believes the Indemnifying Party has failed to do soClaim, the Indemnified Party may assume the defense of shall not admit any liability with respect to, or settle, compromise or discharge, such claim; provided, further, that the Indemnified Third Party may not settle such claim Claim without the Indemnifying Party's prior written consent of the Indemnifying Party, (which consent may shall not be unreasonably withheld). If the Indemnified Indemnifying Party assumes shall have assumed the defense of a Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, which releases the Indemnified Party completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnified Party. If the Indemnifying Party chooses to defend any claim, the Indemnified Party shall make available to the Indemnifying Party any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the receipt of appropriate confidentiality agreements. Notwithstanding the foregoing, the Indemnifying Party shall reimburse not be entitled to assume the Indemnified defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of counsels retained counsel incurred by the Indemnified Party and in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party which the Indemnified Party reasonably determines, based on the opinion of its outside counsel, cannot be separated form any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to participate in (but not control) assume the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks portion relating to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereundermoney damages.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out (a) Each Party shall promptly notify the other Party of any actual or potential claim alleging that the Research, Development, Manufacture, or legal proceeding by a person who is not a party to the AgreementCommercialization of any Licensed Product infringes, misappropriates, or otherwise violates any Patent Rights, Know-How, or other intellectual property rights of any Third Party (“Third Party Infringement”). In any such instance, the Indemnifying Parties shall as soon as practicable thereafter discuss in good faith the best response to such notice of Third Party Infringement, and, subject to Section 3.6, Gilead shall have the first right (but not the obligation) to defend any such claim of Third Party Infringement, at Gilead’s sole discretion, cost, and expense, and Hookipa shall have the right to be represented in any such action by counsel of its own choice at Hookipa’s sole cost and expense and with counsel reasonably satisfactory expense. CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[***]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED. (b) If Gilead declines or fails to the Indemnified Party may, upon written notice assert its intention to the Indemnified Party, assume the defense of defend any such claim or legal proceeding of Third Party Infringement within thirty (30) [***] days after written following receipt or, as applicable, sending of a notice of pursuant to Section 11.4(a), then Hookipa shall have the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in right (but not controlthe obligation) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying PartyThird Party Infringement at Hookipa’s sole discretion, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claimcost and expense, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party Gilead shall have the burden right to prove be represented in any such action by a preponderance counsel of its own choice at Gilead’s sole cost and expense. (c) In no event shall either Party settle or otherwise compromise any Third Party Infringement by admitting that any Patent Right included within the evidence Licensed Technology is invalid or unenforceable, unless explicitly approved by the other Party in writing. In the event that Gilead, subject to Hookipa’s prior approval, enters into any settlement with respect to any actual or potential claim of Third Party Infringement which includes the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense acceptance of any actionlicense to Patent Rights, suit Know-How, or proceedingother intellectual property rights owned or otherwise Controlled by any Third Party and necessary or useful for the Research, whether Development, Manufacture, or not Commercialization of any Licensed Product, such settlement shall further be subject to indemnification hereunderSection 9.5(c).

Defense. In connection with If any claim giving rise such action is brought against an indemnified party, the indemnifying Party will be entitled to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party participate in and to assume the defense thereof to the Agreementextent that it may wish, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party maysuch indemnified party, upon by giving written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding indemnified party within thirty (30) days after of its receipt of written notice of such action from the claim is received subject indemnified party, and after such notice from the indemnifying Party to a reservation such indemnified party of rights the indemnifying Party’s election to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified assume the defense thereof, the indemnifying Party shall not be liable to such indemnified party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof unless the indemnifying Party has failed PURCHASE AND SALE AGREEMENT -49- to assume the defense of such claim and to employ counsel reasonably satisfactory to such indemnified party. Notwithstanding any of the foregoing to the contrary, the indemnified party will be entitled to participate in select its own counsel and assume the defense of any action brought against it if (but not controli) the indemnified party has been advised by counsel that an actual conflict of interest exists between the indemnifying Party and the indemnified party in connection with the defense of such action or proceeding, (ii) such action or proceeding seeks injunctive relief with respect to the indemnified claim or is part of a criminal proceeding or (iii) the indemnifying Party fails to select counsel reasonably satisfactory to the indemnified party, in each case, with the expenses of such defense to be paid by the indemnifying Party. As a condition to the indemnifying Party’s obligations hereunder, the indemnified party will in good faith cooperate with and assist the indemnifying Party in the prosecution or defense of such indemnified claim at no unreasonable out of pocket expense to the indemnified party. No indemnifying Party shall consent to entry of any judgment or enter into any settlement with respect to a claim either (a) without the consent of the indemnified party, which consent shall not be unreasonably withheld, or (b) unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability with respect to such claim. No indemnified party shall consent to entry of any judgment or enter into any settlement of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; providedwhich has been assumed by an indemnifying Party, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying such indemnifying Party, which consent may shall not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunder.

Defense. In connection with any The Indemnified Party intending to claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the Agreement, indemnification under this ARTICLE VIII shall promptly notify the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to of any Action or Loss in respect of which the Indemnified Party mayintends to claim such indemnification, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate assume and control the defense thereof (with counsel selected by the Indemnifying Party) whether or not such Action is rightfully brought; provided, however, that an Indemnified Party shall have the right to retain its own counsel, with the fees and expenses to be paid by the Indemnified Party, unless Indemnifying Party does not assume the defense, in which case the reasonable fees and expenses of counsel retained by the Indemnified Party shall be paid by the Indemnifying Party. The Indemnified Party, and its employees and agents, shall cooperate fully with the Indemnifying Party and its legal representatives in the investigation and defense of any Action or Loss. The Indemnifying Party shall not be liable for the indemnification of any Action or Loss settled (but not controlor resolved by consent to the entry of judgment) without the written consent of the Indemnifying Party. Also, if the Indemnifying Party shall control the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlementAction, the Indemnifying Party shall have the burden right to prove by a preponderance settle such Action; provided, that the Indemnifying Party shall obtain the prior written consent (which shall not be unreasonably withheld or delayed) of the evidence Indemnified Party before entering into any settlement of (or resolving by consent to the entry of judgment upon) such Action unless (A) there is no finding or admission of any violation of law or any violation of the rights of any Person by an Indemnified Party, no requirement that the Indemnified Party did admit fault or culpability, and no adverse effect on any other claims that may be made by or against the Indemnified Party and (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party or its insurer and such settlement does not defend require the Indemnified Party to take (or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of refrain from taking) any action, suit or proceeding, whether or not subject to indemnification hereunder.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by If a person who Third-Party Claim is not a party to the Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to made against the Indemnified Party, assume then the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Indemnifying Party shall be entitled to participate in (but not control) the defense of any such actionthereof and, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails so chooses, to take reasonable steps necessary assume (subject to diligently defend the claim after receiving notice from limitations set forth below) the Indemnified Party that it believes defense thereof with counsel selected by the Indemnifying Party has failed and reasonably satisfactory to do so, the Indemnified Party may assume the defense of such claimParty; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claimprovided that, the Indemnifying Party shall reimburse not be entitled to assume control of such defense (unless otherwise agreed to in writing by the Indemnified Party) and shall pay the reasonable fees and expenses of one counsel for all Indemnified Parties in any one jurisdiction if (i) the Third-Party Claim relates to or arises in connection with any criminal or quasi criminal proceeding, action, indictment, allegation or investigation; (ii) the Third Party Claim seeks an injunction or equitable relief against the Indemnified Party; (iii) the Indemnified Party has been advised by counsel that a reasonable likelihood exists of a conflict of interest (other than a claim for indemnification pursuant to the terms of this Agreement) between the Indemnifying Party and the Indemnified Party; (iv) the defense, settlement or other action or omission with respect to such Third Party Claim could reasonably be expected to have the effect of increasing the present or future Tax liability or decreasing any present or future Tax asset of Buyer or any of its Affiliates, other than an adjustment to the Tax basis of the Assets relating to an increase in Assumed Liabilities solely relating to such Third Party Claim; or (v) in the case of an Indemnified Party that is a Buyer Indemnified Party, such Indemnified Party reasonably believes that the monetary value of the Third Party Claim is reasonably estimated to (x) be less than the Deductible or (y) to exceed the Cap. If the Indemnifying Party so elects to assume (subject to the limitations set forth above) the defense of a Third-Party Claim, then the Indemnifying Party shall not be liable to the Indemnified Party for the reasonable fees and expenses of counsels retained counsel subsequently incurred by the Indemnified Party and in connection with the defense thereof; provided, however, that (i) prior to assuming the defense of such Third-Party Claim, the Indemnifying Party shall be entitled provide to participate in the Indemnified Party an undertaking stating that such Indemnifying Party is able to and will assume the payment of all defense fees and costs and (but not controlii) the Indemnifying Party’s assumption of the defense of such claimThird-Party Claim shall not signify any agreement, with its counsel and at its own expenseobligation or commitment on the part of the Indemnifying Party to assume or pay any amount awarded to a claimant in respect of such Third-Party Claim. If the Indemnifying Party thereafter seeks assumes (subject to question the manner in which limitations set forth above) such defense, then the Indemnified Party defended such third-party claim or shall have the amount or nature of any such settlementright to participate in the defense thereof and to employ counsel, at its own expense, separate 6629923v2 from the counsel employed by the Indemnifying Party, it being understood, however, that the Indemnifying Party shall have control such defense. If the burden Indemnifying Party chooses (subject to prove by the limitations set forth above) to defend any Third-Party Claim, then the Parties shall cooperate in the defense or prosecution of such Third-Party Claim. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records that are reasonably relevant to such Third-Party Claim, and making employees available on a preponderance mutually convenient basis to provide additional information and explanation of any material provided hereunder. If the evidence that Indemnifying Party has not within thirty (30) days after receipt of an Indemnification Notice relating to a Third-Party Claim, chosen to assume defense of a Third-Party Claim, is not entitled to assume defense of a Third-Party Claim (as provided above) or fails to defend such Third-Party Claim actively and in good faith, then the Indemnified Party did not shall (upon further written notice) have the right to defend and, subject to Section 6.5, compromise or settle such thirdThird-party claim Party Claim or consent to the entry of judgment with respect to such Third-Party Claim, in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require case at the cost and expense of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderIndemnifying Party.

Defense. In connection with If the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor shall, by giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party written notice to the AgreementIndemnified Party within 15 days following its receipt of the notice of such claim, assume the Indemnifying Party defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its sole cost and expense expense; PROVIDED, HOWEVER that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and with to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall Indemnity Obligor that there may be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with it which are different from or additional to those available to the Indemnifying PartyIndemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or if (c) the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party Indemnity Obligor has failed to do so, the Indemnified Party may assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor defends or prosecutes such claim; provided, furtherall the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, that information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may not settle have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Entertainment Blvd. July 30, 1999 Page 4 Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the prior written consent of the Indemnifying Indemnified Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunder.

Defense. In connection with any claim giving rise If the facts pertaining to indemnity hereunder resulting from or arising an indemnification loss arise out of any the claim or legal proceeding of a third party (other than Parent and its Affiliates, on the one hand and Shareholder and his Affiliates, on the other, whichever is entitled to indemnification for such matter) and indemnification is available by a person who is not a party to virtue of the Agreementcircumstances of the indemnification loss, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory has the right, to the Indemnified Party may, upon be exercised by delivering written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding Party within thirty (30) days after written notice of the claim is received subject receipt of a Required Notice, to a reservation of rights to contest its indemnity obligation assume and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) control the defense or the prosecution thereof, including the employment of any such actioncounsel or accountants, with its counsel and at its own expense; provided, however, . The assumption of the defense of an indemnification claim by the Indemnifying Party shall not be construed as an acknowledgement that if there are one or more legal defenses available the Indemnifying Party is liable to indemnify the Indemnified Party that conflict with those available to the Indemnifying Partyin respect of such indemnification claim, or if nor shall it constitute a waiver by the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from of any defenses it may assert against the Indemnified Party that it believes Party’s claim for indemnification If the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of any third party claim or litigation, the claim, obligations of the Indemnifying Party under this Agreement shall reimburse include taking all steps necessary in the investigation, defense or settlement of such claim or litigation (including the retention of legal counsel) and holding the Indemnified Party for harmless from and against any and all losses caused by or arising out of any settlement approved by the reasonable Indemnified Party or any judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such claim or litigation, consent to entry of any judgment (except with the written consent of the Indemnified Party), or enter into any settlement (except with the written consent of the Indemnified Party): (a) that does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party a complete release from, all liability in respect of such claim or litigation; or (b) the effect of which is to permit any injunction, declaratory judgment, other order or other equitable relief to be entered, directly or indirectly, against any Indemnified Party. The Indemnifying Party shall permit the Indemnified Party to participate in such defense or settlement through counsel chosen by the Indemnified Party, with the fees and expenses of counsels retained such counsel borne by the Indemnified Party and Party. Whether or not the Indemnifying Party chooses to so defend or prosecute any such indemnification claim, all the parties hereto shall be entitled to participate cooperate in (but not control) good faith and in a reasonable manner in the defense of or prosecution thereof and shall furnish such claimrecords, with its counsel materials, information, witnesses and at its own expense. If the Indemnifying Party thereafter seeks to question the manner testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderconnection therewith.

Defense. In connection with any If a claim giving rise to indemnity hereunder resulting from or by a third party (a "Third Party Claim") is made ------- ----------------- against an SFI Indemnitee arising out of any claim or legal proceeding by a person who matter for which the SFI Indemnitee is not a party entitled to the Agreementbe indemnified pursuant to Section 5 hereof, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory Preferred Shareholders may elect to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense or the prosecution thereof. The Preferred Shareholders shall have 30 days (which shall be shortened to 15 days in the case of a commenced lawsuit or proceeding) after receipt of a Notice of Claim to undertake to conduct and control, through counsel of their own choosing as designated by the Shareholder Representative and at their sole risk and expense, the good faith settlement or defense of such claim, and the SFI Indemnitee(s) shall cooperate fully with the Preferred Shareholders in connection therewith; provided that the SFI Indemnitee(s) shall be entitled to -------- participate in such settlement or defense through counsel chosen by it, provided that the fees and expenses of such counsel shall be borne by the SFI Indemnitee(s); and provided further that the Preferred Shareholders can only assume the defense if (a) the amount of the Third Party Claim does not exceed the amount of the Escrow Funds held hereunder or (b) the Preferred Shareholders provide commercially reasonable evidence that the Preferred Shareholders will have sufficient financial resources to defend the claim and satisfy their indemnification obligations. During the interim the SFI Indemnitee shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the alleged Loss. The Preferred Shareholders shall obtain the written consent of the SFI Indemnitee prior to ceasing to defend, settling or otherwise disposing of such claim if as a result thereof the SFI Indemnitee would become subject to injunctive, declaratory or other equitable relief or the business of the SFI Indemnitee would be materially adversely affected in any manner. Whether or not the Preferred Shareholders choose so to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trials as may be reasonably requested in connection therewith. Such cooperation shall include the retention and the provision of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information. The Preferred Shareholders shall not be liable for any settlement of any such claim or legal proceeding effected without their prior written consent, which shall not be unreasonably withheld. However, if the Preferred Shareholders, fail to defend such claim within thirty (30) days after written notice the time period necessary to preserve the rights and defense of the SFI Indemnitee, the SFI Indemnitee will have the right to undertake the defense, compromise or settlement of such claim is received on behalf of and for the account and risk of the Preferred Shareholders, subject to a reservation the right of rights the Preferred Shareholders to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; providedclaim at any time within the 30-day time period after receiving Notice of Claim. If a claim is based on any suit or proceeding by a third party for infringement which gives rise to an IP Claim (defined in Section 5) resulting in SFI's use of the Software (defined in Section 2.14 of the Merger Agreement) being enjoined or otherwise restricted, furtherthe Preferred Shareholders, if the Preferred Shareholders elect through the Shareholder Representative to assume defense of such proceeding after receiving notice hereunder, shall be entitled at their sole expense to do any of the following: (i) procure for SFI, Clarus CSA, Inc. and their licensees the unrestricted right to continue using the Software, (ii) modify the Software so that it becomes noninfringing, (iii) settle the Indemnified Party may not settle such third party's infringement claim without in a manner that gives SFI, Clarus CSA, Inc. and their licensees the unrestricted rights to the software being enjoined or otherwise restricted, or (iv) pay the indemnified party's claim as provided in this Agreement, provided that any settlement under this sentence shall require SFI's prior written consent of the Indemnifying Party, approval which consent may shall not be unreasonably withheld. If SFI shall comply with any settlement or court order made in connection with such proceeding in the Indemnified Party assumes foregoing sentence provided that such compliance by SFI shall not limit the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party Preferred Shareholder's indemnification obligations hereunder. No Preferred Shareholder shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature liable for any settlement of any such settlementclaim effected without its prior written consent, the Indemnifying Party which shall have the burden to prove by a preponderance not be unreasonably withheld. Before any claim may be brought against any of the evidence that Preferred Shareholders hereunder, or under the Indemnified Party did not defend Merger Agreement, all the Escrow Funds shall be used first to pay any claims made under Article IX of the Merger Agreement or this Agreement, and SFI hereby authorizes the Preferred Shareholders to settle such third-party claims without consent of SFI to the extent the Escrow Funds will fully satisfy such claim. Preferred Shareholders may also settle any claim for which they are liable hereunder without consent of SFI so long as the payment or performance does not either (y) exhaust the Escrow Funds or (y) exceed the maximum liability amounts set forth below. Settlements requiring performance or payment in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably excess of the maximum liability amounts shall require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderSFI's prior written consent.

Defense. In connection with With respect to any claim giving rise Proceeding as to indemnity hereunder resulting from or arising out which Indemnitee notifies the Company of any claim or legal proceeding by a person who is not a party to the Agreementcommencement thereof, the Indemnifying Party Company may participate in the Proceeding at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party mayCompany’s own expense. The Company may also, upon written notice to if the Indemnified PartyCompany so elects, assume the defense of any such claim Proceeding with counsel reasonably satisfactory to Indemnitee except (i) a Proceeding brought by or legal proceeding within thirty (30) days after written notice on behalf of the claim is received subject to Company, (ii) a reservation Proceeding in which Indemnitee has reasonably determined that there may be a conflict of rights to contest its indemnity obligation interest between Indemnitee and obtain reimbursement from Indemnified Party for its costs and expenses the Company in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any the Proceeding, (iii) a Proceeding continuing or commenced after a Change in Control (other than a Change in Control approved by a majority of the directors on the Board who were directors immediately prior to such actionChange in Control) in which Independent Counsel approves Indemnitee’s providing Indemnitee’s own defense with counsel selected by Indemnitee, with its or (iv) a Proceeding in which the Company shall not in fact have employed counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; providedProceeding. A Proceeding, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of which is properly assumed by the claimCompany pursuant to this Section 6(b), is referred to as an “Authorized Assumed Proceeding,” and any Proceeding, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses defense of counsels retained which cannot be assumed or continued by the Indemnified Party Company because it is a Proceeding described in clauses (i), (ii), (iii), or (iv) of the preceding sentence, is referred to as a “Non-Authorized Proceeding.” All Expenses of an Authorized Assumed Proceeding shall be borne by the Company. After notice from the Company to Indemnitee of the Company’s election to assume the defense of an Authorized Assumed Proceeding, the Company shall not be liable to Indemnitee under this Agreement or otherwise for any Expenses subsequently paid or incurred by Indemnitee in connection with the defense of such Authorized Assumed Proceeding other than reasonable costs of transition and investigation. Indemnitee shall have the Indemnifying Party right to employ legal counsel in an Authorized Assumed Proceeding, but all Expenses related thereto incurred after notice from the Company of the Company’s assumption of the defense of an Authorized Assumed Proceeding shall be at Indemnitee’s expense. Indemnitee shall be entitled to participate receive Expense Advances and to be indemnified for all Expenses paid or incurred by Indemnitee related to or arising out of a Non-Authorized Proceeding as provided in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderthis Agreement.

Defense. In connection (i) Within thirty (30) days after delivery of an Indemnification Notice with any claim giving rise respect to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the AgreementThird Party Claim, the Indemnifying Party at its sole cost and expense and may, upon written notice thereof to the Indemnified Party, assume control of the defense of such Third Party Claim with counsel reasonably satisfactory to the Indemnified Party; provided that (A) the Indemnifying Party may, upon written notice may only assume control of such defense if (1) it acknowledges in writing to the Indemnified Party that any damages, fines, costs or other Liabilities that may be assessed against the Indemnified Party in connection with such Third Party Claim constitute Losses for which the Indemnified Party shall be indemnified pursuant to this Article IX and (2) the ad damnum in such Third Party Claim, taken together with the estimated costs of defense thereof and the Claimed Amount with respect to any unresolved claims for indemnification then pending, is less than or equal to the amount of Losses for which the Indemnifying Party is potentially liable under this Article IX in connection with such Third Party Claim, and (B) the Indemnifying Party may not assume control of the defense of any Third Party Claim (I) by a Governmental Entity involving criminal Liability or (II) in which equitable relief (other than incidental equitable relief in any pleadings seeking such remedies as may be deemed appropriate by the court) is sought against the Indemnified Party or any of its Affiliates. The Indemnified Party is hereby authorized (but not obligated) prior to and during the thirty (30) day period referred to in the preceding sentence to file any motion, answer or other pleading and to take any other action which the Indemnified Party shall deem necessary or appropriate to protect its interests. (ii) If the Indemnifying Party so elects to assume the defense of a Third Party Claim as permitted under Section 9.4(b)(i), then the Indemnifying Party shall not be liable to the Indemnified Party for the reasonable fees and expenses of counsel subsequently incurred by the Indemnified Party in connection with the defense thereof unless the Indemnified Party reasonably concludes (upon the advice of outside counsel) that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such Third Party Claim, in each case such that it is in appropriate for a single outside counsel to represent both parties. Subject to Section 9.4(b)(iii), the Non-controlling Party may participate in the defense of any Third Party Claim at its own expense (except to the extent otherwise contemplated by the preceding sentence), it being understood, however, that the Controlling Party shall control such defense in all respects. The Controlling Party shall keep the Non-controlling Party advised of the status of such Third Party Claim and the defense thereof and shall consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Controlling Party and the Non-controlling Party shall reasonably cooperate in the defense, prosecution and/or settlement of any Third Party Claim, which cooperation shall include the retention and (upon the Controlling Party’s request) the provision to the Controlling Party of records that are reasonably relevant to such Third Party Claim and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any Third Party Claim unless (A) such settlement or judgment (i) is solely for money damages and the Indemnifying Party agrees to pay all such money damages, (2) includes a complete and unconditional release of the Indemnified Party and its Affiliates from further Liability, (3) involves no admission of wrongdoing by the Indemnified Party or any of its Affiliates and (4) excludes any injunctive or non-monetary relief applicable to the Indemnified Party or any of its Affiliates or (B) the Indemnified Party consents thereto. If the Indemnifying Party is not permitted to under the terms of this Agreement, chooses not to, or does not, assume the defense of any a Third Party Claim or fails to defend such claim or legal proceeding within thirty (30) days after written notice of Third Party Claim actively and in good faith, then the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled have the right to participate in (but not control) defend, compromise or settle such Third Party Claim or consent to the defense entry of any judgment with respect to such action, with its counsel and Third Party Claim at its own expensethe expense of the Indemnifying Party; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available shall not compromise or settle such Third Party Claim or consent to the Indemnifying Party, or if the Indemnifying entry of judgment with respect to such Third Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim Claim without the prior written consent of the Indemnifying Party, which consent may shall not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim conditioned or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderdelayed.

Defense. In connection (i) Within thirty (30) days after delivery of an Indemnification Notice with any claim giving rise respect to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the AgreementThird Party Claim, the Indemnifying Party at its sole cost and expense and may, upon written notice thereof to the Indemnified Party, assume control of the defense of such Third Party Claim with counsel reasonably satisfactory to the Indemnified Party; provided that (A) the Indemnifying Party may, upon written notice may only assume control of such defense if (1) it acknowledges in writing to the Indemnified Party that any damages, fines, costs or other Liabilities that may be assessed against the Indemnified Party in connection with such Third Party Claim constitute Losses for which the Indemnified Party shall be indemnified pursuant to this Article IX and (2) the ad damnum in such Third Party Claim, taken together with the estimated costs of defense thereof and the Claimed Amount with respect to any unresolved claims for indemnification then pending, is less than or equal to the amount of Losses for which the Indemnifying Party is potentially liable under this Article IX in connection with such Third Party Claim, and (B) the Indemnifying Party may not assume control of the defense of any Third Party Claim (I) by a Governmental Entity involving criminal Liability or (II) in which equitable relief (other than incidental equitable relief in any pleadings seeking such remedies as may be deemed appropriate by the court) is sought against the Indemnified Party or any of its Affiliates. The Indemnified Party is hereby authorized (but not obligated) prior to and during the thirty (30) day period referred to in the preceding sentence to file any motion, answer or other pleading and to take any other action which the Indemnified Party shall deem necessary or appropriate to protect its interests. (ii) If the Indemnifying Party so elects to assume the defense of a Third Party Claim as permitted under Section 9.4(b)(i), then the Indemnifying Party shall not be liable to the Indemnified Party for the reasonable fees and expenses of counsel subsequently incurred by the Indemnified Party in connection with the defense thereof unless the Indemnified Party reasonably concludes (upon the advice of outside counsel) that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such Third Party Claim, in each case such that it is inappropriate for a single outside counsel to represent both parties. Subject to Section 9.4(b)(i), the Non-controlling Party may participate in the defense of any Third Party Claim at its own expense (except to the extent otherwise contemplated by the preceding sentence), it being understood, however, that the Controlling Party shall control such defense in all respects. The Controlling Party shall keep the Non-controlling Party advised of the status of such Third Party Claim and the defense thereof and shall consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Controlling Party and the Non-controlling Party shall reasonably cooperate in the defense, prosecution and/or settlement of any Third Party Claim, which cooperation shall include the retention and (upon the Controlling Party’s request) the provision to the Controlling Party of records that are reasonably relevant to such Third Party Claim and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any Third Party Claim unless (A) such settlement or judgment (i) is solely for money damages and the Indemnifying Party agrees to pay all such money damages, (2) includes a complete and unconditional release of the Indemnified Party and its Affiliates from further Liability, (3) involves no admission of wrongdoing by the Indemnified Party or any of its Affiliates and (4) excludes any injunctive or non-monetary relief applicable to the Indemnified Party or any of its Affiliates or (B) the Indemnified Party consents thereto. If the Indemnifying Party is not permitted to under the terms of this Agreement, chooses not to, or does not, assume the defense of any a Third Party Claim or fails to defend such claim or legal proceeding within thirty (30) days after written notice of Third Party Claim actively and in good faith, then the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled have the right to participate in (but not control) defend, compromise or settle such Third Party Claim or consent to the defense entry of any judgment with respect to such action, with its counsel and Third Party Claim at its own expensethe expense of the Indemnifying Party; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available shall not compromise or settle such Third Party Claim or consent to the Indemnifying Party, or if the Indemnifying entry of judgment with respect to such Third Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim Claim without the prior written consent of the Indemnifying Party, which consent may shall not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim conditioned or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderdelayed.

Defense. In connection with any claim giving rise to indemnity hereunder resulting Upon receipt of notice under Section 9.2(a) from or arising out of any claim or legal proceeding by a person who is not a party to the AgreementIndemnitee, the Indemnifying Party will have the duty to either compromise or defend, at its sole cost and own expense and with by counsel (reasonably satisfactory to Indemnitee), such Action. The Indemnifying Party will promptly (and in any event not more than [**] days after receipt of the Indemnified Indemnitee’s original notice) notify the Indemnitee in writing that it acknowledges its obligation to indemnify the Indemnitee with respect to the Action pursuant to this Article 9 and of its intention to either compromise or defend such Action. Once the Indemnifying Party may, upon written gives such notice to the Indemnified PartyIndemnitee, the Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee’s reasonable costs of investigation and cooperation. However, the Indemnitee will have the right to employ separate counsel and to control the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses of such counsel) if: (i) the use of the counsel chosen by the Indemnifying Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the Indemnitee, and the Indemnitee reasonably concludes that there may be legal defenses available to it that are different from or additional to those available to the Indemnifying Party (in which case the Indemnifying Party will not have the right to assume the defense of any such claim or legal proceeding Action on the Indemnitee’s behalf); (iii) the Indemnifying Party does not employ counsel satisfactory to the Indemnitee to represent the Indemnitee within thirty (30) days a reasonable time after written the Indemnitee’s notice of such Action; (iv) the Indemnifying Party denies or fails to timely admit its obligation to defend and indemnify the Action; or (v) in the reasonable opinion of counsel to the Indemnitee, the claim is received could result in the Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a reservation materially adverse effect on the ongoing business of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expenseIndemnitee; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if in no event shall the Indemnifying Party fails be obligated to take reasonable steps necessary to diligently defend bear the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do sofees, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees costs and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in more than one (but not control1) the defense of such claim, with its separate counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance for all of the evidence that the Indemnified Party did not defend or settle other Party’s Indemnitees in such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderAction.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out Promptly after receipt by an Indemnified Person of notice of any claim or legal demand or the commencement of any suit, action or proceeding by a person who is any third party with respect to which indemnification may be sought hereunder, such Indemnified Person shall notify in writing the Indemnitor of such claim or demand or the commencement of such suit, action or proceeding, but failure so to notify the Indemnitor shall not a party to relieve the AgreementIndemnitor from any liability which the Indemnitor may have hereunder or otherwise, unless the Indemnitor shall be actually prejudiced by such failure. If the Indemnitor shall so elect, the Indemnifying Party at its sole cost and expense and with Indemnitor shall assume the defense of such claim, demand, action, suit or proceeding, including the employment of counsel reasonably satisfactory to such Indemnified Person, and shall pay the fees and disbursements of such counsel. In the event, however, that such Indemnified Party may, upon written notice Person shall reasonably determine that having common counsel would present such counsel with a conflict of interest or alternative defenses shall be available to an Indemnified Person or if the Indemnified Party, Indemnitor shall fail to assume the defense of the claim, demand, action, suit or proceeding in a timely manner, then such Indemnified Person may employ separate counsel to represent or defend such Person against any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such claim, demand, action, with its counsel suit or proceeding and at its own expensethe Indemnitor shall pay the reasonable fees and disbursements of such counsel; provided, however, that if there are the Indemnitor shall not be required to pay the fees and disbursements of more than one separate counsel for all Indemnified Persons in any jurisdiction in any single action, suit or more legal defenses available to proceeding. For any claim, demand, action, suit or proceeding the Indemnified Party that conflict with those available to defense of which the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do soIndemnitor shall assume, the Indemnified Party may assume Person shall have the defense right to participate therein and to retain its own counsel at such Indemnified Person's own expense (except as otherwise specifically provided in this Section 12.4), so long as such participation does not interfere with the Indemnitor's control of such claim; provided, furtherdemand, that the Indemnified Party may not settle such claim action, suit or proceeding. The Indemnitor shall not, without the prior written consent of the Indemnifying PartyIndemnified Person, which settle or compromise or consent may not be unreasonably withheld. If to the Indemnified Party assumes the defense entry of the any judgment in any pending or threatened claim, the Indemnifying Party action, suit or proceeding in respect of which indemnification may be sought hereunder unless such settlement, compromise or consent shall reimburse the include an unconditional release of such Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense Person from all liability arising out of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlementdemand, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceedingproceeding and would not prohibit, whether restrict or not subject to indemnification hereunderimpair the Indemnified Person from engaging in any business.

Defense. In connection with If the facts relating to a Loss arise out of the claim of any third party, or if there is any claim giving rise to indemnity hereunder resulting from or arising out against a third party available by virtue of any claim or legal proceeding by a person who is not a party to the Agreementcircumstances of the Loss, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party Indemnity Obligor may, upon by giving written notice to the Indemnified PartyParty within 15 days following its receipt of the notice of such claim, elect to assume the defense or the prosecution thereof, including the employment of any such claim counsel or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and accountants at its own cost and expense; provided, however, that if during the interim the Indemnified Party shall use its commercially reasonable efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (i) the employment thereof has been specifically authorized by the Indemnity Obligor, (ii) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there are may be one or more legal defenses available to the Indemnified Party that conflict with it which are different from or additional to those available to the Indemnifying PartyIndemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or if (iii) the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party Indemnity Obligor has failed to do so, the Indemnified Party may assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses so to defend or prosecute such claim; provided, furtherall the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, that information and testimony and shall attend such conferences, discovery proceedings and trials as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a third party claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may not settle have any right or claim against such third party relating to such Loss. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the prior written consent of the Indemnifying Indemnified Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunder.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by If a person who Third-Party Claim is not a party to the Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to made against the Indemnified Party, assume then the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Indemnifying Party shall be entitled to participate in (but not control) the defense of any such actionthereof and, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails so chooses, to take reasonable steps necessary to diligently defend assume the claim after receiving notice from the Indemnified Party that it believes defense thereof with counsel selected by the Indemnifying Party has failed and reasonably satisfactory to do so, the Indemnified Party. If the Indemnifying Party may so elects to assume the defense of such claim; provideda Third-Party Claim, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, then the Indemnifying Party shall reimburse not be liable to the Indemnified Party for the reasonable fees and expenses of counsels retained counsel subsequently incurred by the Indemnified Party and in connection with the defense thereof; provided, however, that (i) prior to assuming the defense of such Third-Party Claim, the Indemnifying Party shall be entitled provide to participate in the Indemnified Party an undertaking stating that such Indemnifying Party is able to and will assume the payment of all defense fees and costs and (but not controlii) the Indemnifying Party’s assumption of the defense of such claimThird-Party Claim shall not signify any agreement, with its counsel and at its own expenseobligation or commitment on the part of the Indemnifying Party to assume or pay any amount awarded to a claimant in respect of such Third-Party Claim. If the Indemnifying Party thereafter seeks to question the manner in which assumes such defense, then the Indemnified Party defended such third-party claim or shall have the amount or nature of any such settlementright to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood, however, that the Indemnifying Party shall have control such defense. If the burden Indemnifying Party chooses to prove by defend any Third-Party Claim, then the Parties shall cooperate in the defense or prosecution of such Third-Party Claim. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records that are reasonably relevant to such Third-Party Claim and making employees available on a preponderance mutually convenient basis to provide additional information and explanation of any material provided hereunder. If the evidence that Indemnifying Party has not within ten (10) Business Days after receipt of an Indemnification Notice relating to a Third-Party Claim, chosen to assume defense of a Third-Party Claim or fails to defend such Third-Party Claim actively and in good faith, then the Indemnified Party did not shall (upon further written notice) have the right to defend and, subject to Section 8.05(c), compromise or settle of such thirdThird-party claim Party Claim or consent to the entry of judgment with respect to such Third-Party Claim, in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require case at the cost and expense of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderIndemnifying Party.

Defense. In connection with If any claim giving rise Proceeding referred to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who in Section 10.9.1 is not a brought against an indemnified party to the Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written it gives notice to the Indemnified Partyindemnifying party of the commencement of such Proceeding, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of indemnifying party will, unless the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall Tax Claim, be entitled to participate in such Proceeding and, to the extent that it wishes (but not controlunless (i) the defense of any indemnifying party is also a party to such actionProceeding and the indemnified party determines in good faith that joint representation would be inappropriate, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available (ii) the indemnifying party fails to provide reasonable assurance to the Indemnified Party that conflict indemnified party of its financial capacity to defend such Proceeding and provide indemnification with those available respect to the Indemnifying Partysuch Proceeding), or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; providedProceeding with counsel satisfactory to the indemnified party and, furtherafter notice from the indemnifying party to the indemnified party of its election to assume the defense of such Proceeding, that the Indemnified Party may not settle indemnifying party will not, as long as it diligently conducts such claim without defense, be liable to the prior written consent indemnified party under this Section 10 for any fees of other counsel or any other expenses with respect to the Indemnifying Partydefense of such Proceeding, which consent may not be unreasonably withheldin each case subsequently incurred by the indemnified party in connection with the defense of such Proceeding, other than reasonable costs of investigation. If the Indemnified Party indemnifying party assumes the defense of a Proceeding, (i) it will be conclusively established for purposes of this Agreement that the claim, claims made in that Proceeding are within the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees scope of and expenses subject to indemnification; (ii) no compromise or settlement of counsels retained such claims may be effected by the Indemnified Party indemnifying party without the indemnified party’s consent unless (A) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other claims that may be made against the indemnified party, and (B) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (iii) the indemnifying party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of the commencement of any Proceeding and the Indemnifying Party shall be entitled indemnifying party does not, within ten (10) days after the indemnified party’s notice is given, give notice to participate in (but not control) the indemnified party of its election to assume the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlementProceeding, the Indemnifying Party shall have indemnifying party will be bound by any determination made in such Proceeding or any compromise or settlement effected by the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderindemnified party.

Defense. In connection with With respect to any claim giving rise Proceedin▇, ▇▇▇▇ath RentCorp will be entitled to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party participate in the Proceeding at ▇▇▇ ▇▇n expense. Except as otherwise provided below, to the Agreementextent McGrath RentCorp so desires, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party it may, upon delivery of written notice to the Indemnified Party▇▇ ▇▇▇▇xx, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject Proceeding with counsel reasonably satisfactory to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling sameXxxxxx. The Indemnified Party However, McGrath RentCorp shall not be entitled to participate in (but not control) assume the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one P▇▇▇▇▇▇▇ng (i) brought by or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Partyon behalf of McGrath RentCorp, or (ii) as to which Xxxxxx has reasonably determine▇ ▇▇▇▇▇ may be a conflict of interest between Xxxxxx and McGrath RentCorp in the defense of the Proceeding and Xxxxxx does in ▇▇▇▇ ▇▇sume and conduct the defense. 5.2.1 If McGrath RentCorp assumes the defense, Xxxxxx shall furnish such infor▇▇▇▇▇▇ as he may possess regarding Xxxxxx or the Proceeding in question that McGrath RentCorp may reasonably request and as may be required in con▇▇▇▇▇▇▇ with the defense or settlement of such Proceeding and shall fully cooperate with McGrath RentCorp in every other respect. Except as provided in Sectio▇ ▇.▇ ▇elow, if McGrath RentCorp assumes the Indemnifying Party fails defense of the Proceeding, McGrath RentC▇▇▇ ▇▇▇ll take all necessary steps in good faith to take reasonable steps necessary to diligently defend defe▇▇, ▇▇▇tle or otherwise dispose of the claim after receiving Proceeding. 5.2.2 After written notice from McGrath RentCorp to Xxxxxx of its election to assume the Indemnified Party that it believes defense of a▇▇ ▇▇▇▇eeding, McGrath RentCorp will not be liable to Xxxxxx under this Agreement or ▇▇▇▇▇▇ise for any Expenses subsequently incurred by Xxxxxx in connection with the Indemnifying Party defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (i) through (iv) below. Xxxxxx shall have the right to employ Xxxxxx's own counsel in such Proceeding, but all Expenses related thereto incurred after written notice from McGrath RentCorp of its assumption of the defense shall be at Xxxxxx'▇ ▇▇▇▇▇se, unless: (i) the employment of counsel by Xxxxxx has failed to do sobeen authorized by McGrath RentCorp; (ii) Xxxxxx has reasonably determined there may be ▇ ▇▇▇▇▇ict of interest between Xxxxxx and McGrath RentCorp in the defense of the Proceeding; (iii) after a Chan▇▇ ▇▇ ▇ontrol, the Indemnified Party may employment of counsel by Xxxxxx has been approved by Independent Counsel; or (iv) McGrath RentCorp shall not, in fact, assume and conduct the defense o▇ ▇▇▇▇ Proceeding within a reasonable time after giving written notice of its election to assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the Proceeding. 5.2.3 Any Expenses incurred by McGrath RentCorp in defense of the claimProceeding under this Section 5.2 (▇▇▇▇▇▇ in a situation described in clause (i), the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses (ii) or (iv) of counsels retained by the Indemnified Party and the Indemnifying Party Section 5.2.2) shall be entitled considered Expenses advanced by McGrath RentCorp to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderXxxxxx under Section 3 above.

Defense. (i) In connection with any claim giving rise to indemnity hereunder resulting from or arising out the case of any claim or legal proceeding by a person who is not a third party to the Agreementclaim, the Indemnifying Party at may participate in the defense thereof and, if it so chooses and irrevocably acknowledges its sole cost and expense and obligation to indemnify the Indemnified Party therefor, control the defense of an Indemnifiable Claim with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party reasonably believes that (x) a material conflict of interest between the Indemnified Party and the Indemnifying Party with those available respect to the claim or its defense exists or is likely to develop during the pendency of the litigation, and as a result of such conflict, the Indemnifying Party's incentive to defend such claim could reasonably be expected to be materially compromised, or if (y) the claim raises serious issues regarding the integrity or moral character of the Indemnified Party or any of its Affiliates, or of its of their senior management, in its or their capacity as such (which issues are a fundamental element of the claim) then the Indemnified Party shall be entitled to control the defense of the claim in accordance with paragraph (b)(ii) of this Section 9.3, it being understood that the mere allegation of fraud, willful misconduct, bad faith, malfeasance or any similar such claim as part of multiple claims constituting an Indemnifiable Claim, shall not be deemed, in and of itself, to provide the basis for the Indemnified Party's rights as set forth in this clause (y). In all cases, the party without the right to control the defense of the Indemnifiable Claim may participate in the defense at its own expense. In the case of a third party claim, the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from shall inform the Indemnified Party that it believes within 20 days of receiving the written notice seeking indemnification whether the party elects to control the defense and irrevocably acknowledges its obligation to indemnify the Indemnified Party therefor. The Indemnifying Party shall be liable for the reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed not assumed the defense thereof, provided that it either irrevocably acknowledges in writing its indemnity obligations with respect to do so, the Indemnity Claim or it is determined by a court of competent jurisdiction that it is obligated hereunder to provide such indemnification. If the Indemnifying Party disputes its liability with respect to a potential Indemnifiable Claim or the amount thereof (whether or not it desires to defend the Indemnified Party may assume against a third party claim), the defense parties shall endeavor in good faith to settle such dispute. The Indemnifying Party shall not settle or compromise a third party claim or legal proceeding without the prior written consent of such claim; provided, further, that the Indemnified Party, which consent shall not be unreasonably withheld, delayed or conditioned; provided that such prior written consent shall not be required with respect to any Indemnifiable Claim that relates to any item referred to in Sections 9.1(c), (d), (e), (f), (g), (h), or (i), except with respect to any Indemnifiable Claim relating to Remediation of Hazardous Substances that is covered by Section 5.18 shall remain subject in all respects to the terms of Section 5.18. The Indemnified Party may shall not settle such or compromise a third party claim for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party, which consent may shall not be unreasonably withheld, conditioned or delayed. If the Indemnified Indemnifying Party assumes does not assume the defense of any third party claim or litigation resulting therefrom within 20 days after the date it receives notice of such claim from the Indemnified Party, the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including settling such claim or litigation, after giving notice to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate. Notwithstanding anything in this Section 9.3 to the contrary, if for any reason (for example the effect of the limitations set forth in Sections 9.4 or 9.5 or evidence that an Indemnifiable Loss may be attributable to events before or after Closing) there is any uncertainty whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or Purchaser, the parties will (A) cooperate in good faith to determine whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or Purchaser, (B) until such uncertainty is resolved to the mutual satisfaction of the parties, jointly determine who will control the defense and settlement of any such Indemnifiable Claim and how such defense and settlement will be handled, (C) cooperate with each other in the defense and settlement of such Indemnifiable Claim and the exchange of information relevant thereto, (D) unless otherwise agreed, share the out-of-pocket costs of such defense and settlement (including the costs of investigation, response and mitigation) equally until the parties' respective rights to indemnification for such costs are resolved, and (E) treat the defense and settlement of such Indemnifiable Claim as a joint and common defense, including any joint defense agreement which may be entered into by the parties. (ii) In the case of claims described in the proviso to the first sentence of Section 9.3(b)(i), the Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such claim, at the expense of the Indemnifying Party, but the Indemnifying Party will not be bound by any compromise or settlement effected without its consent (which consent shall reimburse the not be unreasonably withheld, conditioned or delayed). The Indemnified Party for shall conduct the defense in good faith and in a commercially reasonable fees manner, and expenses of counsels retained by the Indemnified Party and shall inform the Indemnifying Party periodically, or upon the Indemnifying Party's reasonable request, of the status of the litigation. The Indemnified Party's choice of counsel shall be entitled subject to the consent of the Indemnifying Party, such consent not to be unreasonably withheld or delayed. The Indemnifying Party may participate in (but not control) the defense of such claimthereof, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlementIf, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure preserve existing insurance for a claim against IPC currently maintained by Dynegy, it is necessary to permit Dynegy's insurer to conduct the proper and adequate defense of any actionIPC, suit Purchaser will consider in good faith waiving or proceedingsharing its right to control such defense so that Dynegy's insurance rights are not lost, whether or not subject to indemnification hereunderthe condition that the insurer accepts the tender of the claim without reservation of rights. Notwithstanding anything to the contrary in this Section 9.3(b), any Indemnifiable Claim relating to Hazardous Substances that is covered by Section 5.18 shall remain subject in all respect to the terms of Section 5.18.

Defense. In connection with (a) Promptly after the receipt by any claim giving rise person entitled to indemnity hereunder resulting from indemnification under Section 9.2 or arising out 9.3 herein of notice of (i) any claim or legal (ii) the commencement of any action or proceeding, such party (the "Aggrieved Party") will, if the claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 or 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding by a person who is not a party to the Agreement, and shall permit the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the Indemnifying Party in the conduct of the defense of such action. Failure by the Indemnifying Party to notify the Aggrieved Party of its election to defend any such proceeding or action within thirty (30) a reasonable time, but in no event more than 15 days after written notice of thereof shall have been given to the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party Indemnifying Party, shall be entitled deemed a waiver by the Indemnifying Party of its right to participate in defend such action. (but not controlb) If the Indemnifying Party assumes the defense of any such actionclaim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with its counsel and such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its own expense; provided, however, in the defense of such claim or litigation provided that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or if enter into any settlement, except with the written consent of the Aggrieved Party. (c) If the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may shall not assume the defense of any such claim; providedclaim or litigation resulting therefrom, further, that the Indemnified Aggrieved Party may not settle defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the prior written consent of the Indemnifying Party, which consent may shall not be unreasonably withheld. If the Indemnified Party assumes the defense no settlement of the claimclaim or litigation is made, the Indemnifying Party shall promptly reimburse the Indemnified Aggrieved Party for the reasonable fees amount of any judgment rendered with respect to such claim or in such litigation and expenses of counsels retained all expenses, legal or otherwise, as incurred by the Indemnified Aggrieved Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of against such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or litigation. (d) The rights to indemnification hereunder shall apply to claims made by either party against the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance other whereby written notice of the evidence that claim has been made and delivered within the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require period of each other in order to insure the proper and adequate defense applicable statute of any action, suit or proceeding, whether or not subject to indemnification hereunderlimitations.

Defense. In connection with any claim giving rise The Indemnifying Party shall have the right to indemnity hereunder resulting from direct, through counsel of its own choosing, the defense or arising out settlement of any claim action or legal proceeding by a person who is not a party to brought against the AgreementIndemnified Party in respect of Third Party Claims; provided, however, that the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to shall not settle any matter without obtaining the Indemnified Party's prior consent thereto if such settlement provides for any remedy other than the payment of money damages or that does not provide for a full release of the Indemnified Party mayor, upon written notice regardless of the terms of such settlement, if the Indemnifying Party disputes its liability with respect to the Indemnified Party, Third Party Claim. If the Indemnifying Party elects to assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do soproceed ing, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the such defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks fails to question the manner in which defend or, after commencing or undertaking any such defense, fails to prosecute or withdraws from such defense other than as a result of a settlement, the Indemnified Party defended such third-party claim shall have the right to direct, at the Indemnifying Party's sole cost and expense, through counsel of its own choosing, the defense or the amount or nature settlement of any such settlementaction or proceeding; provided, however, that if the Indemnified Party assumes the defense of any such claim or proceeding pursuant to this Section 10.3 and proposes to settle such claim or proceeding prior to a final judgment thereon or to forego appeal with respect thereto, then the Indemnified Party shall give the Indemnifying Party prompt written notice thereof and the Indemnifying Party shall have the burden right to prove by a preponderance participate in and consent (which consent shall not be unreasonably withheld) to the settlement or assume or reassume the defense of such claim or proceeding. Notwithstanding the evidence that foregoing provisions of this Section 10.3(b), if the Indemnifying Party disputes its liability to the Indemnified Party did and if such dispute is resolved in favor of the Indemnifying Party by final, nonappealable order of a court of competent jurisdiction, the Indemnifying Party shall not defend or settle be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.3(b), and the Indemnified Party shall reimburse the Indemnifying Party in full for all costs and expenses incurred by the Indemnifying Party in con nection with such third-Third Party Claim. The party claim in a reasonably prudent mannerdirecting the defense shall pursue such defense diligently and promptly. The parties agree to render, without compensation but shall cooperate in the defense shall pursue such defense diligently and promptly. The parties shall cooperate in 48 57 the defense of all Third Party Claims. In connection with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any actionThird Party Claim, suit each party shall make available to the party controlling such defense any books, records or proceedingother documents within its control that are reasonably requested in the course of or necessary or appropriate for such defense, whether or not subject provided appropriate arrangements are made to indemnification hereundersafeguard the confidentiality of such materials.

Defense. In connection with any claim giving rise to indemnity hereunder resulting Upon receipt of notice under Section 11.3.1 (Notice) from or arising out of any claim or legal proceeding by a person who is not a party to the AgreementIndemnitee, the Indemnifying Party will have the duty to either compromise or defend, at its sole cost and own expense and with by counsel (reasonably satisfactory to Indemnitee), such Claim. The Indemnifying - 41 - [*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Indemnified Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Party may, upon written will promptly (and in any event not more than [*] after receipt of the Indemnitee’s original notice) notify the Indemnitee in writing that it acknowledges its obligation to indemnify the Indemnitee with respect to the Claim pursuant to this Article 11 (Indemnification; Insurance) and of its intention either to compromise or defend such Claim. Once the Indemnifying Party gives such notice to the Indemnified PartyIndemnitee, assume (a) the Indemnifying Party will have the right to control the defense and settlement of such Claim, subject to this Section 11.3 (Indemnification Procedures) and (b) the Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee’s reasonable expenses of investigation and cooperation. Any Indemnitee will be entitled to participate in, but not control, the defense of any Claim and to retain counsel of its choice for such claim or legal proceeding within thirty purpose; provided that such retention will be at the Indemnitee’s own cost and expense unless (30i) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that and retain counsel in accordance with this Section 11.3.2 (Defense) (in which case the Indemnified indemnified Party may not settle such claim without will control the prior written consent of defense at the Indemnifying Party’s cost and expense), which consent may not be unreasonably withheld. If or (ii) the Indemnified Party assumes the defense interests of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party Indemnitee and the Indemnifying Party shall be entitled with respect to participate in (but not control) such Claim are sufficiently adverse to prohibit the defense representation by the same counsel of such claimboth Parties under any legal requirement, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim ethical rules, or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderequitable principles.

Defense. In connection with the event any Third Party makes a demand or claim giving rise or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity hereunder resulting from under this Agreement, or arising out in the event that a potential Loss comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event will promptly notify the other Party in writing of the demand, claim or legal proceeding lawsuit. Within ten days after written notice by a person who is not a party the Indemnified Party (the “Notice”) to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the Agreementnext sentence, the Indemnifying Party will have the option, at its sole cost and expense and with expense, to retain counsel reasonably satisfactory to for the Indemnified Party mayto defend any such demand, upon written notice to claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party, assume which approval will not unreasonably be withheld. The Indemnified Party will have the right, at its own expense, to participate in the defense of any such claim suit, action or legal proceeding within thirty (30) days after written notice of the claim is received subject brought against it with respect to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall which indemnification may be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expensesought hereunder; provided, however, that if there are one (A)(i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or more legal defenses available to potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party that conflict with those available to and (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes (B) the Indemnifying Party has failed not in fact employed counsel to do so, the Indemnified Party may assume the defense of such claimaction within a reasonable time; providedthen, further, that the Indemnified Party may not settle such claim without will have the prior written consent right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses will be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent may to entry of any judgment or enter into any settlement without the consent of the Indemnified Party which consent will not be unreasonably withheld. If In the event that the Indemnifying Party will fail to respond within twenty days after receipt of the Notice, the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees may retain counsel and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) conduct the defense of such claimdemand, with claim or lawsuit, as it may in its counsel sole discretion deem proper, at the sole cost and at its own expense. If expense of the Indemnifying Party, which costs and expenses will be paid by the Indemnifying Party thereafter seeks on a current basis. Failure to question provide Notice will not limit the manner in which rights of such party to indemnification, except to the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, extent the Indemnifying Party shall have the burden to prove by a preponderance Party’s defense of the evidence that the Indemnified Party did not defend or settle action is prejudiced by such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderfailure.