Common use of Defense Clause in Contracts

Defense. 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 written notice to the Indemnified Party 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 counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and 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 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 may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to 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, 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 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 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 consent of the Indemnified Party.

Defense. If the facts relating The Indemnifying Party shall be entitled to a Loss arise out a Third Party Claimparticipate in and, or if there is any claim against a third party available by virtue of the circumstances of the Lossit so desires, the Indemnity Obligor may, by giving written notice to the Indemnified Party 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 an Action with counsel or accountants, reasonably satisfactory to the Indemnified PartyIndemnitee. Once the Indemnifying Party notifies the Indemnitee of its election to assume the defense of an Action, at its cost and expense; provided, however, that during the interim the Indemnified Indemnifying Party shall use its best efforts to take all action (is not including settlement) reasonably necessary to protect against further damage or loss with respect liable to the LossIndemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than reasonable costs of investigation. The Indemnified Party However, the Indemnitee shall have the right to employ separate counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate thereinin the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, but the fees costs, and expenses of such counsel shall be at the Indemnified Party's own expense, unless separate counsel) if: (ai) the employment thereof has been specifically authorized use of the counsel chosen by the Indemnity ObligorIndemnifying Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, (b) or targets of, such Indemnified Action include both the Indemnifying Party has been advised by counsel and the Indemnitee, and the Indemnitee reasonably satisfactory to the Indemnity Obligor concludes that there may be one or more legal defenses available to it which that are different from or additional to those available to the Indemnity Obligor and Indemnifying Party (in which case the reasonable judgment of such counsel it is advisable for such Indemnified Indemnifying Party to employ separate counsel, or (c) shall not have the Indemnity Obligor has failed right to assume the defense of such action and Action on the Indemnitee's behalf); (iii) the Indemnifying Party does not employ counsel reasonably satisfactory to the Indemnified Indemnitee to represent the Indemnitee within a reasonable time after the Indemnitee's notice of such Action; or (iv) the Indemnifying Party authorizes the Indemnitee to employ separate counsel at the Indemnifying Party. Whether or not the Indemnity Obligor chooses 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 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 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 consent of the Indemnified Party's expense.

Defense. If the facts relating to a Loss arise out any action is brought against an indemnified party by a Third Party Claim, or if there is any claim against with respect to a third party available by virtue of the circumstances of the Lossmatter subject to indemnification under this Agreement, the Indemnity Obligor may, by giving written notice indemnifying Party will be entitled to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect participate in and to assume the defense or thereof to the prosecution 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, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified indemnifying Party shall use its best efforts not be liable to take all action (not including settlement) reasonably necessary to protect against further damage such indemnified party for any legal or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed other expenses subsequently incurred by the Indemnity Obligor latter in any such action and to participate therein, but connection with the fees and expenses of such counsel shall be at defense thereof unless the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified indemnifying Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume and diligently prosecute the defense of such action and employ counsel reasonably satisfactory claim. Notwithstanding any of the foregoing to the Indemnified contrary, 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. Whether or not As a condition to the Indemnity Obligor chooses to defend or prosecute such claimindemnifying Party’s obligations hereunder, all the parties hereto shall 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 prosecution thereof and shall furnish such recordsenter into any settlement with respect to a claim either (a) without the consent of the indemnified party, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor which consent shall not be liable for 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 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 Claimaction, 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 defense 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. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party has been assumed by an indemnifying Party, without the consent of the Indemnified such indemnifying Party, which consent shall not be unreasonably withheld.

Defense. 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 LossExcept as otherwise provided herein, the Indemnity Obligor may, by giving written notice to the Indemnified Indemnifying ------- Party within 15 days following its receipt of the notice of such claim, may elect to assume the defense compromise or the prosecution thereofdefend, including the employment of at such Indemnifying Party's own expense and by such In demnifying Party's own counsel or accountants, (which counsel shall be reasonably satisfactory to the Indemnified Party), at any Third Party Claim. 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 cost intent to do so, and expense; provided, however, that during the interim the Indemnified Party shall use 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 best efforts election to take all action do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (not including settlementi) reasonably necessary to protect the Indemnified Party may pay (without prejudice of any of its rights as against further damage the Indemnifying Party), compromise or loss with respect 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 Lossterms of this Agreement. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall have reasonably conclude, based upon advice of its outside legal counsel, that (x) there is a conflict of interest between the right to employ counsel separate from counsel employed by Indemnifying Party and the Indemnity Obligor Indemnified Party in any such action and to participate therein, but the fees and expenses conduct of the defense of such counsel shall be at the Indemnified Party's own expense, unless Third Party Claim or (ay) 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 may be one or more legal are specific defenses available to it the Indemnified Party which are different from or additional to those available to the Indemnity Obligor Indemnifying Party and in which could be materially adverse to the reasonable judgment of such counsel it is advisable for such Indemnifying Party, then the Indemnified Party to employ separate counsel, or (c) shall have the Indemnity Obligor has failed right to assume and direct 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, 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 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. In such an event, the Indemnity Obligor Indemnifying Party shall be subrogated to pay the reasonable fees and shall stand in the place disbursements of counsel of the Indemnifying Party and one counsel to all the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnifying Party as to any events or circumstances in respect of which nor the Indemnified Party may have settle or compromise any right or claim against such (however, if the sole settlement relief payable to a third party relating to in respect of such indemnified matter. The Indemnified Third Party shall cooperate with Claim is monetary damages that are paid in full by the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any Indemnifying Party, the Indemnifying Party may settle such claim that would adversely affect the Indemnified Party without the consent of the Indemnified Party) over the objection of the other; provided, however, that consent to -------- ------- settlement or compromise shall not be unreasonably withheld by the Indemnified Party. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such Third Party Claim. 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.

Defense. 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 LossExcept as otherwise provided herein, the Indemnity Obligor may, by giving written notice to the Indemnified Indemnifying Party within 15 days following its receipt of the notice of such claim, may elect to assume pay, compromise or defend (with the defense or expenses incurred by the prosecution thereof, including the employment of Indemnifying Party in connection therewith for its own account) by such Indemnifying Party's own counsel or accountants, (which counsel shall be reasonably satisfactory to the Indemnified Party), at any Third Party Claim. 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, notify the Indemnified Party of its cost intent to do so, and expensethe 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), with the expenses incurred by the Indemnifying Party for the account of the Indemnified Party but part of the Loss for which the Indemnified Party is entitled to indemnification pursuant to the 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 the other; provided, however, that during the interim (i) consent to settlement or compromise shall not be unreasonably withheld by the Indemnified Party shall use its best efforts and (ii) if the sole settlement relief payable 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 may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to 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, 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 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 third party in respect of which such Third Party Claim is monetary damages that are paid in full by the Indemnified Indemnifying Party, the Indemnifying Party may have any right or settle such 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 consent of the Indemnified Party. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such Third Party Claim. 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.

Defense. If (a) The Indemnifying Party shall have the facts relating right, at its expense and at its election, to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue assume control of the circumstances negotiation, settlement and defense of the LossClaim through counsel of its choice. In such event, the Indemnity Obligor may, by giving written notice to Indemnifying Party shall reimburse the Indemnified Party 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 counsel or accountants, reasonably satisfactory to 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, at its cost and expense; provided, however, that during failing which the interim the Indemnified Indemnifying Party shall use its best efforts be deemed to take all action (have elected not including settlement) reasonably necessary to protect against further damage or loss with respect assume such control. If the Indemnifying Party elects to assume such control, the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by be informed and consulted with respect to the Indemnity Obligor in any negotiation, settlement or defenses of such action Claim and to participate thereinretain counsel to act on its behalf, but the fees and expenses disbursements of such counsel shall be at 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 bound by the results obtained by the Indemnified Party with respect to 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's own expense, unless (a) reimburse the employment thereof has been specifically authorized Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnity Obligor, (b) such Indemnified Indemnifying Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to the Indemnifying Party. (b) If the Indemnifying Party fails to assume control of the defense of any Claim, the Indemnified Party shall have the exclusive right to consent, settle or pay the amount claimed. Whether or not the Indemnity Obligor chooses to defend Indemnifying Party assumes control of the negotiation, settlement 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 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 have any right or claim against such third party relating to such indemnified matter. The Indemnified Indemnifying Party shall cooperate with the Indemnity Obligor in prosecuting not settle any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed, unless such settlement provides solely for monetary damages or other monetary payments.

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there is In connection with any claim against giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third person who is not a party available by virtue of to the circumstances of the LossAgreement, the Indemnity Obligor Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, by giving 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 15 fifteen days following its after receipt of notice from the notice Indemnified Party, its obligations to indemnify the Indemnified Party with respect to all elements of such claim, elect (b) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to assume the defense 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 prosecution thereofthird-party claim is not, including in the employment good faith judgment of counsel or accountants, reasonably satisfactory to the Indemnified Party, likely to establish a pattern or practice adverse to the continuing business interests of the Indemnified Party. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its cost and own 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 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 if there may be are one or more legal defenses available to it which are different from or additional to the Indemnified Party that conflict with those available to the Indemnity Obligor and in Indemnifying Party, or if the Indemnifying Party fails to take reasonable judgment of such counsel it is advisable for such steps necessary to diligently defend the claim after receiving notice from the Indemnified Party to employ separate counsel, or (c) that it believes the Indemnity Obligor Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such action and employ counsel reasonably satisfactory to 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. Whether or 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 Indemnity Obligor chooses to defend or prosecute defense of such claim, all with its counsel and at its own expense. If the parties hereto shall cooperate Indemnifying Party thereafter seeks to question the manner in the defense or prosecution thereof and shall furnish such records, 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 have defended such third-party claim or the amount or nature of any right or claim against such third party relating to such indemnified matter. The Indemnified settlement, the Indemnifying Party shall cooperate with have the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim burden to prove by a preponderance of the evidence that would adversely affect the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation, to each other such assistance as they may reasonably require of each other in order to insure the consent proper and adequate defense of the Indemnified Partyany action, suit or proceeding, whether or not subject to indemnification hereunder.

Defense. If the facts relating pertaining to a Loss loss arise out a Third Party Claimof the claim of any third party, 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 written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect to “Indemnifying Party” may assume the defense or the prosecution thereofthereof by prompt written notice to the Indemnified Party, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and 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 Indemnifying Party in any such action and to participate therein, but the fees and expenses of such counsel employed by the Indemnified Party shall be at their expense. The Indemnifying Party shall not be liable for any settlement of any such claim effected without its prior written consent, which shall not be unreasonably withheld; provided that if the Indemnifying Party does not assume the defense or prosecution of a claim as provided above within thirty (30) days after notice thereof, the Indemnified Party may settle such claim without the Indemnifying Party’s consent. The Indemnifying Party shall not agree to a settlement of any claim which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of any Indemnified Party without 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 may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party’s prior written consent. Whether or not the Indemnity Obligor Indemnifying Party chooses to so 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 testimony, and shall attend such conferences, discovery proceedings proceedings, hearings, trials and trial appeals, 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 Indemnifying Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to all rights and shall stand in the place remedies of the Indemnified Party 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. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Indemnifying Party.

Defense. If a Third Party Claim is made against an Indemnified Party, then the Indemnifying Party shall be entitled to participate in the defense of the Third Party Claim and, if the Indemnifying Party so chooses, to assume the defense of the Third Party Claim. If the facts relating Indemnifying Party so elects to a Loss arise out assume the defense of a Third Party Claim, or if there is any claim against a third party available by virtue of then, for so long as the circumstances of Indemnifying Party defends the LossThird Party Claim, the Indemnity Obligor mayIndemnifying Party shall be deemed to have acknowledged its indemnification obligations under this Article 1 with respect to such Third Party Claim, by giving written notice and the Indemnifying Party shall not be liable to the Indemnified Party 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 counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim for legal expenses subsequently incurred by the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss in connection with respect to the Lossdefense of the Third Party Claim. The If the Indemnifying Party assumes such defense, then the Indemnified Party shall have the right to participate in the defense of the Third Party Claim and to employ counsel counsel, at its own expense, separate from the counsel employed by the Indemnity Obligor Indemnifying Party, it being understood, however, that the Indemnifying Party shall control such defense, including any settlement or compromise of the Third Party Claim, provided that Parent shall not settle or compromise any Third Party Claim arising solely as a result of a breach of any representation or warranty for an amount in any such action and to participate thereinexcess of Parent’s aggregate indemnification obligations under this Article 1, but as set forth in Section 8.1(b)(iii), without Buyer’s written consent, which consent may not be unreasonably withheld, delayed or conditioned. If 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 Indemnifying Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to 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 claimany Third Party Claim, all then the parties hereto Parties shall cooperate in the defense or prosecution thereof of the Third Party Claim. Such cooperation shall include the retention and shall furnish such records, (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records that are reasonably relevant to the Third Party Claim and making employees available on a mutually convenient basis to provide additional 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 explanation of any such claim effected without its prior written consentmaterial provided. In If the event Indemnifying Party, within a reasonable time after receipt of payment by the Indemnity Obligor an Indemnification Notice relating to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, chooses not to assume defense of the Indemnity Obligor Third Party Claim or at any time fails to defend the Third Party Claim actively and in good faith, then the Indemnified Party shall (upon further notice to the Indemnifying Party) have the right to undertake the defense of the Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be subrogated entitled to defend or settle a Third Party Claim, and shall stand in the place Indemnifying Party will pay the reasonable attorneys’ fees and related out-of-pocket expenses of the Indemnified Party as in defending or settling a Third Party Claim with respect to which the Indemnifying Party is obligated to provide indemnification hereunder, where the remedy sought is reasonably expected to have a Material Adverse Effect; provided, however, that in any events or circumstances in respect of which such event the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified will not settle the Third 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 Claim without the prior written consent of the Indemnified Indemnifying Party, which consent may not be unreasonably withheld, delayed or conditioned.

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there is In connection with any claim against giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third person who is not a party available by virtue of to the circumstances of the LossAgreement, the Indemnity Obligor Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, by giving upon written notice to the Indemnified Party within 15 days following its receipt of the notice of such claimParty, elect to assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the prosecution thereofclaim 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, including the employment of with its counsel or accountants, reasonably satisfactory to the Indemnified Party, and at its cost and own 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 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 if there may be are one or more legal defenses available to it which are different from or additional to the Indemnified Party that conflict with those available to the Indemnity Obligor and in Indemnifying Party, or if the Indemnifying Party fails to take reasonable judgment of such counsel it is advisable for such steps necessary to diligently defend the claim after receiving notice from the Indemnified Party to employ separate counsel, or (c) that it believes the Indemnity Obligor Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such action and employ counsel reasonably satisfactory to 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. Whether or 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 Indemnity Obligor chooses to defend or prosecute defense of such claim, all with its counsel and at its own expense. If the parties hereto shall cooperate Indemnifying Party thereafter seeks to question the manner in the defense or prosecution thereof and shall furnish such records, 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 have defended such third-party claim or the amount or nature of any right or claim against such third party relating to such indemnified matter. The Indemnified settlement, the Indemnifying Party shall cooperate with have the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim burden to prove by a preponderance of the evidence that would adversely affect 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 consent proper and adequate defense of the Indemnified Partyany action, suit or proceeding, whether or not subject to indemnification hereunder.

Defense. If An Indemnifying Party will have the facts relating sole right to a Loss arise out a Third control the defense and financial settlement of any Losses for which it is providing indemnification hereunder, including the selection of legal counsel, except that the Indemnifying Party Claim, must not agree to any non-financial settlement or if there is term of settlement (including but not limited to any claim against a third party available by virtue acknowledgement of liability or responsibility) of any Losses without the prior consent of the circumstances relevant Indemnified Party(ies). The Indemnified Party(ies) will, at the Indemnifying Party’s sole cost and expense, cooperate with the Indemnifying Party as reasonably requested in the defense of the LossLosses, including but not limited to making relevant representatives and documents available to the Indemnity Obligor mayIndemnifying Party. Nothing herein prevents an Indemnified Party, by giving written notice prior to the resolution of any Losses, from retaining its own legal counsel for the purpose of assuming control of the Indemnified Party’s defense; however, the Indemnified Party within 15 days following must immediately notify the Indemnifying Party in writing of its receipt assumption of the notice defense, and its assumption thereof will relieve the Indemnifying Party of such claim, elect to assume the any further indemnification and defense or the prosecution thereof, including the employment obligations on behalf of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts hereunder as of the date of such notice. Notwithstanding anything to take all action (not including settlement) reasonably necessary to protect against further damage or loss the contrary in this Section 3.2, with respect to an Indemnified Party that is a Federal Institution, the Loss. The Indemnified Indemnifying Party shall have the right to employ counsel separate from counsel employed control the defense and financial settlement of Losses, including the selection of legal counsel, as provided herein, except to the extent that a third party is required by the Indemnity Obligor in any such action and law to participate therein, but the fees and expenses of such counsel shall be at defend the Indemnified Party's own expense, unless (a) which requirement may limit or preclude the employment thereof has been specifically authorized by the Indemnity ObligorIndemnifying Party’s obligation to defend, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it but which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to 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, 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 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 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 consent of the Indemnified Indemnifying Party’s obligations to indemnify and hold harmless hereunder.

Defense. If Upon receipt of notice under Subsection (a) from 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 LossIndemnitee, the Indemnity Obligor mayIndemnifying Party will have the duty to either to compromise or defend, at its own expense and by giving written notice counsel (reasonably satisfactory to the Indemnified Indemnitee), such Action. The Indemnifying Party within 15 will promptly (and in any event not more than twenty (20) days following its after receipt of the notice Indemnitee's original notice) notify the Indemnitee in writing of its intention to either compromise or defend such claim, elect Action. Once the Indemnifying Party notifies the Indemnitee of its election to assume the defense or of an Action, the prosecution thereof, including Indemnifying Party is not liable to the employment Indemnitee for the fees of other counsel or accountantsany other expenses subsequently incurred by the Indemnitee in connection with such defense, reasonably satisfactory to other than the Indemnified PartyIndemnitee's reasonable costs of investigation and cooperation. However, at its cost and 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 Indemnitee shall have the right to employ separate counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate thereinin the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, but the fees costs, and expenses of such counsel shall be at the Indemnified Party's own expense, unless counsel) if: (ai) the employment thereof has been specifically authorized use of the counsel chosen by the Indemnity ObligorIndemnifying Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, (b) or targets of, such Indemnified Action include both the Indemnifying Party has been advised by counsel and the Indemnitee, and the Indemnitee reasonably satisfactory to the Indemnity Obligor concludes that there may be one or more legal defenses available to it which that are different from or additional to those available to the Indemnity Obligor and Indemnifying Party (in which case the reasonable judgment of such counsel it is advisable for such Indemnified Indemnifying Party to employ separate counsel, or (c) shall not have the Indemnity Obligor has failed right to assume the defense of such action and Action on the Indemnitee's behalf); (iii) the Indemnifying Party does not employ counsel reasonably satisfactory to the Indemnified Party. Whether Indemnitee to represent the Indemnitee within a reasonable time after the Indemnitee's notice of such Action; (iv) the Indemnifying Party denies or not the Indemnity Obligor chooses fails to timely admit its obligation to defend or prosecute such claim, all and indemnify the parties hereto shall cooperate Action; or (v) in the defense or prosecution thereof and shall furnish such records, 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 reasonable opinion of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor counsel to the Indemnified Party in connection with any Loss arising out of a Third Party ClaimIndemnitee, the Indemnity Obligor shall be subrogated to and shall stand claim could result in the place Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a materially adverse effect on the ongoing business of the Indemnified Party 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. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified PartyIndemnitee.

Defense. If Upon receipt of notice under Subsection (a) from 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 LossIndemnitee, the Indemnity Obligor mayIndemnifying Party will have the duty to either compromise or defend, at its own expense and by giving written notice counsel (reasonably satisfactory to the Indemnified Indemnitee), such Action. The Indemnifying Party within 15 will promptly (and in any event not more than twenty (20) days following its after receipt of the notice of such claim, elect Indemnitee's original notice) notify the Indemnitee in writing that it acknowledges its obligation to assume indemnify the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and 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 Indemnitee with respect to the LossAction pursuant to this Article 8 and of its intention to either compromise or defend such Action. The Indemnified Once the Indemnifying Party shall 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 separate from counsel employed by the Indemnity Obligor in any such action and to participate thereincontrol the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, but the fees costs, and expenses of such counsel shall be at the Indemnified Party's own expense, unless counsel) if: (ai) the employment thereof has been specifically authorized use of the counsel chosen by the Indemnity ObligorIndemnifying Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, (b) or targets of, such Indemnified Action include both the Indemnifying Party has been advised by counsel and the Indemnitee, and the Indemnitee reasonably satisfactory to the Indemnity Obligor concludes that there may be one or more legal defenses available to it which that are different from or additional to those available to the Indemnity Obligor and Indemnifying Party (in which case the reasonable judgment of such counsel it is advisable for such Indemnified Indemnifying Party to employ separate counsel, or (c) will not have the Indemnity Obligor has failed right to assume the defense of such action and Action on the Indemnitee's behalf); (iii) the Indemnifying Party does not employ counsel reasonably satisfactory to the Indemnified Party. Whether Indemnitee to represent the Indemnitee within a reasonable time after the Indemnitee's notice of such Action; (iv) the Indemnifying Party denies or not the Indemnity Obligor chooses fails to timely admit its obligation to defend or prosecute such claim, all and indemnify the parties hereto shall cooperate Action; or (v) in the defense or prosecution thereof and shall furnish such records, 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 reasonable opinion of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor counsel to the Indemnified Party in connection with any Loss arising out of a Third Party ClaimIndemnitee, the Indemnity Obligor shall be subrogated to and shall stand claim could result in the place Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a materially adverse effect on the ongoing business of the Indemnified Indemnitee; provided, however, that in no event shall the Indemnifying Party as be obligated to any events or circumstances in respect bear the fees, costs and expenses 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. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent more than one (1) separate counsel for all of the Indemnified other Party's Indemnitees in such Action.

Defense. If the facts relating to a Loss arise out a Third Party Claimany claim, demand or if there liability is asserted by any claim against a third party available by virtue of the circumstances of the Lossagainst any Indemnified Party, the Indemnity Obligor mayIndemnifying Party shall be entitled to participate therein and defend any action or proceeding brought against the Indemnified Party in respect of matters embraced by the indemnity, and the Indemnifying Party shall have the right to conduct and control the defense subject to the Indemnified Party’s approval in writing of outside counsel selected by giving written the Indemnifying Party. After notice from the Indemnifying Party to the Indemnified Party within 15 days following of its receipt of the notice of such claim, elect election to assume the defense of such claim or action, the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory Indemnifying Party shall not be liable to the Indemnified Party, at its cost and expense; provided, however, that during the interim Party under this Section 11.3 for any reasonable legal or other expenses subsequently incurred by the Indemnified Party shall use its best efforts to take all in connection with the defense thereof other than reasonable costs of investigation. In any action (not including settlement) reasonably necessary to protect against further damage or loss with respect to defended by the Loss. The Indemnifying Party the Indemnified Party shall have the right to employ be represented by its own counsel separate from counsel employed by at its own expense unless (1) the Indemnity Obligor in any such action and to participate therein, but the fees and expenses employment of such counsel shall be at have been authorized in writing by the Indemnified Indemnifying Party's own expense, unless ; or (a2) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) Indemnifying Party shall not have properly employed counsel reasonably satisfactory to such Indemnified Party has to have charge of the defense of such action; in each of such cases such fees and expenses shall be paid and advanced by the Indemnifying Party. In addition, if the named parties to any such action, suit or proceeding (including any impleaded parties) shall include both such Indemnified Party and Indemnifying Party, and such Indemnified Party shall have been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from from, or additional to to, those available to the Indemnity Obligor Indemnifying Party, and in the reasonable judgment of such counsel it is advisable for if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counselcounsel at the expense of the Indemnifying Party, or (c) the Indemnity Obligor has failed Indemnifying Party shall not have the right to assume the defense of such action, suit or proceeding on behalf of such Indemnified Party, and the Indemnified Party may participate in the defense of such action, suit or proceeding and such fees and expenses shall be paid and advanced by the Indemnifying Party; it being understood, however, that the Indemnifying Party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and employ expenses of more than one separate firm of attorneys (in addition to any local counsel reasonably satisfactory for all such Indemnified Party). The Indemnifying Party will not, without Indemnified Party’s written consent, settle or compromise any indemnifiable claim or consent to the entry of any judgment in respect thereof unless such settlement, compromise or consent includes an unconditional release of the Indemnified PartyParty from all liability in respect of such indemnifiable claim. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the 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 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 have any right or claim against such all third party relating claims which may give rise 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 consent of the Indemnified Partyindemnifiable claims hereunder.

Defense. If Subject to the facts relating to a Loss arise out limitations set forth in this Section 10.5(b), in the event of a Third Party Claim, or if there is any claim against a third party available the Indemnifying Party shall have the right (exercisable by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party within 15 ten (10) days following its receipt after the Indemnified Party has given a Claim Notice of the notice of such claim, Third Party Claim) to elect to assume conduct and control, through counsel of its choosing and at the defense Indemnifying Party’s sole cost and expense, the defense, compromise or settlement of the prosecution thereofThird Party Claim if the Indemnifying Party (i) has acknowledged and agreed in writing that, including if the employment of counsel or accountantssame is adversely determined, reasonably satisfactory the Indemnifying Party shall provide indemnification to the Indemnified Party, at its cost and expenseParty in respect thereof; provided, however, that during the interim Indemnified Party 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 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 its best efforts of counsel selected by the Indemnifying Party to take all action represent the Indemnified Party would present such counsel with an actual or potential conflict of interest, or (not including settlementD) reasonably necessary to protect the Third Party Claim is for injunctive, equitable or other non-monetary relief against further damage or loss with respect to the Loss. The Indemnified Party, then in each such case the Indemnified Party shall have the right to employ control the defense, compromise or settlement of the Third Party Claim with 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 its choice at the Indemnified Indemnifying Party's own ’s sole cost and expense. In connection with any Third Party Claim, unless (a) from and after delivery of a Claim Notice, the employment thereof has been specifically authorized by Indemnifying Party and the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor shall, and shall cause their respective Affiliates and representatives to, cooperate fully in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to 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, all the parties hereto shall cooperate in connection with the defense or prosecution thereof and shall furnish of such Third Party Claim, including furnishing such records, information and testimony and shall attend attending such conferences, discovery proceedings proceedings, hearings, trials and trial appeals 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 Indemnifying Party or the Indemnified Party in connection with therewith. In addition, the party controlling the defense of any Loss arising out of a Third Party Claim, Claim shall keep the Indemnity Obligor shall be subrogated to non-controlling party advised of the status thereof and shall stand consider in good faith any recommendations made by the place of the Indemnified Party as to any events or circumstances in non-controlling party with 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. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Partythereto.

Defense. If Except as provided in Section 11.6, if within 10 calendar days after an Indemnitee provides Notice to the facts relating to a Loss arise out a Indemnifying Party of any Third Party Claim, or if there is any claim against a third party available by virtue of Claim the circumstances of Indemnitee receives Notice from the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Indemnifying Party within 15 days following its receipt of the notice of that such claim, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and 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 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 Indemnifying Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed elected to assume the defense of such action and employ counsel reasonably satisfactory to Third Party Claim, the Indemnified Party. Whether or not the Indemnity Obligor chooses 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 trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall Indemnifying Party will not be liable for any legal expenses subsequently incurred by the Indemnitee in connection with the defense thereof. The Indemnitee shall be entitled to participate in 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 Third Party Claim upon the other Party’s reasonable request from time to time. Without the prior written consent of the Indemnitee, the Indemnifying Party will not enter into any settlement of any such claim effected without its prior written consentThird Party Claim which would lead to liability or create any financial or other obligation on the 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. In the event of payment by the Indemnity Obligor If a firm offer is made to the Indemnified Party in connection with any Loss arising out of settle a Third Party ClaimClaim without leading to liability or the creation of a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder (or which would not impose any injunctive or other equitable remedy on the Indemnitee) and the Indemnifying Party desires to accept and agree to such offer, the Indemnity Obligor shall be subrogated Indemnifying Party will give Notice to and shall stand the Indemnitee to 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 place maximum liability of the Indemnified Indemnifying Party 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 Third Party shall cooperate with Claim will be the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect amount of such settlement offer, plus reasonable costs and expenses paid or incurred by the Indemnified Party without Indemnitee up to the consent date of the Indemnified Partysuch notice.

Defense. 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 LossExcept as otherwise provided herein, the Indemnity Obligor may, by giving written notice to the Indemnified Indemnifying Party within 15 days following its receipt of the notice of such claim, may elect to assume the defense compromise or the prosecution thereofdefend, including the employment of at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel or accountants, (which counsel shall be reasonably satisfactory to the Indemnified Party), at any Third Party Claim. 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 in good faith states in such notice that prompt action is required), notify the Indemnified Party of its cost intent to do so, and expense; provided, however, that during the interim the Indemnified Party shall use 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 best efforts election to take all action do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (not including settlementi) reasonably necessary to protect the Indemnified Party may pay (without prejudice of any of its rights as against further damage the Indemnifying Party), compromise or loss with respect 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 Lossterms of this Agreement. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall have reasonably conclude, based upon advice of its outside legal counsel, that (x) there is a conflict of interest between the right to employ counsel separate from counsel employed by Indemnifying Party and the Indemnity Obligor Indemnified Party in any such action and to participate therein, but the fees and expenses conduct of the defense of such counsel shall be at the Indemnified Party's own expense, unless Third Party Claim or (ay) 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 may be one or more legal are specific defenses available to it the Indemnified Party which are different from or additional to those available to the Indemnity Obligor Indemnifying Party and in which could be materially adverse to the reasonable judgment of such counsel it is advisable for such Indemnifying Party, then the Indemnified Party to employ separate counsel, or (c) shall have the Indemnity Obligor has failed right to assume and direct 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, 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 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. In such an event, the Indemnity Obligor Indemnifying Party shall be subrogated to pay the reasonable fees and shall stand in the place disbursements of counsel of the Indemnifying Party and one counsel to all the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnifying Party as to any events or circumstances in respect of which nor the Indemnified Party may have settle or compromise any right or claim against such (however, if the sole settlement relief payable to a third party relating to in respect of such indemnified matter. The Indemnified Third Party shall cooperate with Claim is monetary damages that are paid in full by the Indemnity Obligor Indemnifying Party and if the settlement results in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the full and unconditional release of all claims against the Indemnified Party by the person asserting such claim, the Indemnifying Party may settle such claim without the consent of the Indemnified Party) over the objection of the other. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such Third Party Claim in which case each party shall cooperate in providing information to and consulting with the other about the claim. 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.

Defense. If the facts relating any Proceeding referred to a Loss arise out a Third Party Claim, or if there in Section 10.10.1 is any claim brought against a third an indemnified party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written and it gives notice to the Indemnified Party within 15 days following its receipt indemnifying party of the notice commencement of such claimProceeding, elect the indemnifying party will, unless the claim is a Tax Claim, be entitled to assume the defense or the prosecution thereofparticipate in such Proceeding and, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Partyextent that it wishes (unless (i) the indemnifying party is also a party to such Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, at or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its cost financial capacity to defend such Proceeding and 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 provide indemnification 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 thereinProceeding), 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 may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ Proceeding with counsel reasonably satisfactory to the Indemnified Party. Whether or not indemnified party and, after notice from the Indemnity Obligor chooses indemnifying party to defend or prosecute such claim, all the parties hereto shall cooperate in indemnified party of its election to assume the defense of such Proceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under this Section 10 for any fees of other counsel or prosecution thereof any other expenses with respect to the defense of such Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such Proceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a Proceeding, (i) it will be conclusively established for purposes of this Agreement that the claims made in that Proceeding are within the scope of and shall furnish subject to indemnification; (ii) no compromise or settlement of such records, information and testimony and shall attend such conferences, discovery proceedings and trial as claims may be reasonably requested effected by the 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 connection therewith. The Indemnity Obligor shall not be liable for full by the indemnifying party; and (iii) the indemnifying party will have no liability with respect to any compromise or settlement of any such claim claims effected without its prior written consent. In If notice is given to an indemnifying party of the event commencement of payment any Proceeding and the indemnifying party does not, within ten 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 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 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 consent of the Indemnified Partyparty.

Defense. If the facts relating to a Loss arise out a Third Party Claimof the claim of any third party, 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 written notice to the Indemnified Party 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 counsel or accountants, reasonably satisfactory to the Indemnified Party, accountants at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best 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 (ai) the employment thereof has been specifically authorized by the Indemnity Obligor, (bii) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (ciii) the Indemnity Obligor has failed to 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, 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 trial 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 Claimthird 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 have any right or claim against such third party relating to such indemnified matterLoss. 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 consent of the Indemnified Party.

Defense. If the facts relating to a Loss arise out a Third Third-Party Claim, or if there Claim is any claim made against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party, then the Indemnifying Party within 15 days following its receipt of shall be entitled to participate in the notice of such claimdefense thereof and, elect if the Indemnifying Party so chooses, to assume the defense or thereof with counsel selected by the prosecution thereof, including the employment of counsel or accountants, Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party so elects to assume the defense of a Third-Party Claim, at its cost then the Indemnifying Party shall not be liable to the Indemnified Party for the reasonable fees and expenseexpenses of counsel subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, that during (i) prior to assuming the interim 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 use its best efforts not signify any agreement, obligation or commitment on the part of the Indemnifying Party to take all action (not including settlement) reasonably necessary assume or pay any amount awarded to protect against further damage or loss with a claimant in respect to of such Third-Party Claim. If the Loss. The Indemnifying Party assumes such defense, then the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel counsel, at its own expense, separate from the counsel employed by the Indemnity Obligor in any Indemnifying Party, it being understood, however, that the Indemnifying Party shall control such action and to participate therein, but defense. If 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 Indemnifying Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to 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 claimany Third-Party Claim, all then the parties hereto Parties shall cooperate in the defense or prosecution thereof of such Third-Party Claim. Such cooperation shall include the retention and shall furnish (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records that are reasonably relevant to such records, Third-Party Claim and making employees available on a mutually convenient basis to provide additional 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 explanation of any material provided hereunder. If the 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 claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to Third-Party Claim actively and in good faith, then the Indemnified Party in connection shall (upon further written notice) have the right to defend and, subject to Section 8.05(c), compromise or settle of such Third-Party Claim or consent to the entry of judgment with any Loss arising out of a Third respect to such Third-Party Claim, in each case at the Indemnity Obligor shall be subrogated to cost and shall stand in the place expense of the Indemnified Party 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. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Indemnifying Party.

Defense. If the facts relating any Proceeding referred to a Loss arise out a Third Party Claim, or if there in Section 10.9.1 is any claim brought against a third an indemnified party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written and it gives notice to the Indemnified Party within 15 days following its receipt indemnifying party of the notice commencement of such claimProceeding, elect the indemnifying party will, unless the claim is a Tax Claim, be entitled to assume the defense or the prosecution thereofparticipate in such Proceeding and, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Partyextent that it wishes (unless (i) the indemnifying party is also a party to such Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, at or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its cost financial capacity to defend such Proceeding and 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 provide indemnification 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 thereinProceeding), 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 may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ Proceeding with counsel reasonably satisfactory to the Indemnified Party. Whether or not indemnified party and, after notice from the Indemnity Obligor chooses indemnifying party to defend or prosecute such claim, all the parties hereto shall cooperate in indemnified party of its election to assume the defense of such Proceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under this Section 10 for any fees of other counsel or prosecution thereof any other expenses with respect to the defense of such Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such Proceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a Proceeding, (i) it will be conclusively established for purposes of this Agreement that the claims made in that Proceeding are within the scope of and shall furnish subject to indemnification; (ii) no compromise or settlement of such records, information and testimony and shall attend such conferences, discovery proceedings and trial as claims may be reasonably requested effected by the 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 connection therewith. The Indemnity Obligor shall not be liable for full by the indemnifying party; and (iii) the indemnifying party will have no liability with respect to any compromise or settlement of any such claim claims effected without its prior written consent. In If notice is given to an indemnifying party of the event commencement of payment any Proceeding and the indemnifying party does not, within ten (10) 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 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 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 consent of the Indemnified Partyparty.

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against by a third party available by virtue is made against any party entitled to indemnification under this Agreement, such Indemnified Party shall promptly (i.e., within five (5) business days of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party within 15 having actual knowledge of such claim) notify the indemnifying party of such claim. The indemnifying party shall have ten (10) business days following its after receipt of the above-referenced notice to undertake, through counsel of such claim, elect its choosing (subject to assume the defense or the prosecution thereof, including the employment reasonable consent of counsel or accountants, reasonably satisfactory to the Indemnified Party) and at the expense of the indemnifying party, at its cost and expensethe settlement or defense thereof; provided, however, that during any such settlement shall be subject to the interim written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or 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 shall use its best efforts within ten (10) business days after receipt of the Indemnified Party's notice of a claim of indemnity hereunder that the indemnifying party elects to take all action (not including settlement) undertake the defense thereof, or the indemnifying party ceases to reasonably necessary to protect against further damage or loss with respect to contest such claim in good faith, the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by contest, settle or compromise the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be claim at the Indemnified Party's own expense, unless (a) expense of the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory indemnifying party and subject to the Indemnity Obligor that there may written consent of the indemnifying party, which shall not be one unreasonably withheld, conditioned or more legal defenses available to it which are different from or additional to those delayed. In connection with the defense of any claim, each party will make available to the Indemnity Obligor and in the reasonable judgment of party controlling such counsel it is advisable for such Indemnified Party to employ separate counseldefense, any books, records or (c) the Indemnity Obligor has failed to 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, 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 trial as may be other documents within its control that are reasonably requested in connection therewiththe course of such defense. The Indemnity Obligor Nothing contained in this Section 9.3.2 shall not be liable for any settlement construed as a limitation on the right of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor party 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 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 consent of the Indemnified Partyindemnification under this Agreement.

Defense. If The Indemnifying Party may undertake and control the facts relating to a Loss arise out a defense of the Third Party Claim, or by representatives reasonably acceptable to the Indemnified Party, if there (i) the Indemnified Party, in the case it is any claim against a third party available by virtue of the circumstances of Buyer Indemnified Parties, determines that the LossLosses alleged to be subject to indemnification under this Article 8 would not be recoverable, in whole or predominately, under the Indemnity Obligor may, by giving RWI Policy and (ii) the Indemnifying Party admits in written notice to the Indemnified Party 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 counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and 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 it has an indemnification obligation hereunder with respect to such Third Party Claim, in which case such admission shall constitute the LossIndemnifying Party’s undertaking to pay directly all Losses incurred in connection with the Third Party Claim (giving effect to the limitations set forth in this Article 8). The If the Indemnifying Party undertakes the defense of the Third Party Claim, then the Indemnified Party shall have the right to employ counsel separate from counsel employed by participate in the Indemnity Obligor defense of the Third Party Claim at its own expense, provided that, in any such action and to participate thereinevent, but the Indemnifying Party shall pay the fees and expenses of such separate counsel shall be at (A) incurred by 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 prior to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to date the Indemnity Obligor and in the reasonable judgment Indemnifying Party assumes control of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action the Third Party Claim or (B) if representation of both the Indemnifying Party and employ the Indemnified Party by the same counsel reasonably satisfactory would create a conflict of interest. So long as the Indemnifying Party is defending the Third Party Claim actively and in good faith, the Indemnified Party shall not compromise or settle, or consent to the Indemnified Partyentry of a judgment with respect to, the Third Party Claim without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned, or delayed). Whether or not the Indemnity Obligor chooses Each Party shall cooperate, and cause its Subsidiaries to defend or prosecute such claimcooperate, all the parties hereto shall cooperate in the defense or prosecution thereof of any Third Party Claim and shall furnish or cause to be furnished such records, information information, and testimony testimony, and shall attend such conferences, discovery proceedings and trial proceedings, hearings, trials, or appeals, 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 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 consent of the Indemnified Partydefense.

Defense. If a Third Party Claim is made against an indemnified party, the facts relating indemnifying party will be entitled to a Loss arise out participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the indemnifying party and reasonably satisfactory to the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, or if there is any claim against a third the indemnifying party available will not be liable to the indemnified party for legal expenses subsequently incurred by virtue of the circumstances of indemnified party in connection with the Lossdefense thereof. If the indemnifying party assumes such defense, the Indemnity Obligor may, by giving written notice indemnified party shall have the right to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect to assume participate in the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory thereof and to the Indemnified Partyemploy counsel, at its cost own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenseexpenses of counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof; provided, however, that during if the interim indemnified party's counsel determines that the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage indemnified party has or loss with respect may have defenses to the Loss. The Indemnified Third Party Claim apart from or conflicting with the defenses of the indemnifying party, then the indemnified party shall have be entitled to retain its own separate counsel and the right to employ counsel separate from counsel employed indemnifying party shall be liable for legal expenses incurred by the Indemnity Obligor indemnified party 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 may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to Third Party Claim. If the Indemnified Party. Whether or not the Indemnity Obligor indemnifying party chooses to defend or prosecute such claimany Third Party Claim, all the parties hereto thereto shall cooperate in the defense or prosecution thereof thereof. Such cooperation shall include the retention and shall furnish (upon the indemnifying party's request) access to the indemnifying party of records and information which are reasonably relevant to such recordsThird Party Claim, and making employees available on a mutually convenient basis to provide additional 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 explanation of any such claim effected without its prior written consentmaterial provided hereunder. In Whether or not the event of payment by indemnifying party shall have assumed the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out defense of a Third Party Claim, the Indemnity Obligor indemnified party shall not admit any liability with respect to, or settle, compromise or discharge such Third Party Claim without the indemnifying party's prior written consent (which consent shall not be subrogated unreasonably withheld). If the indemnifying party shall have assumed the defense of a Third Party Claim, the indemnifying party shall not settle such Third Party Claim without the indemnified party's prior written consent (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, if there is a reasonable probability that the indemnifying party will not be able to and shall stand in satisfy its indemnification obligations under this Section 7, the place of indemnified party will have the Indemnified Party as right 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 defend and, after reasonable consultation 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 indemnifying party, to compromise or settle the Indemnified Third Party without the consent of the Indemnified PartyClaim.

Defense. If the facts relating (i) Within thirty (30) days after delivery of an Indemnification Notice with respect 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 Indemnifying Party may, by giving upon written notice thereof to the Indemnified Party within 15 days following its receipt Party, assume control of the notice defense of such claim, elect to assume the defense or the prosecution thereof, including the employment of Third Party Claim with counsel or accountants, reasonably satisfactory to the Indemnified Party; provided that (A) the Indemnifying Party 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 cost and expense; providedown expense (except to the extent otherwise contemplated by the preceding sentence), it being understood, however, that during the interim 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 shall use and its best efforts to take all action Affiliates from further Liability, (not including settlement3) reasonably necessary to protect against further damage involves no admission of wrongdoing by the Indemnified Party or loss with respect any of its Affiliates and (4) excludes any injunctive or non-monetary relief applicable to the LossIndemnified Party or any of its Affiliates or (B) the Indemnified Party consents thereto. The If the Indemnifying Party is not permitted to under the terms of this Agreement, chooses not to, or does not, assume the defense of a Third Party Claim or fails to defend such Third Party Claim actively and in good faith, then the Indemnified Party shall have the right to employ counsel separate from counsel employed by defend, compromise or settle such Third Party Claim or consent to the Indemnity Obligor in any entry of judgment with respect to such action and to participate therein, but the fees and expenses of such counsel shall be Third Party Claim at the Indemnified expense of the Indemnifying Party's own expense; provided, unless (a) however, the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory shall not compromise or settle such Third Party Claim or consent to the Indemnity Obligor that there may be one or more legal defenses available entry of judgment with respect to it such Third Party Claim without the prior written consent of the Indemnifying Party, which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to 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, 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 trial as may be reasonably requested in connection therewith. The Indemnity Obligor consent 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 Claimunreasonably withheld, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events conditioned 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. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Partydelayed.

Defense. If Upon receipt of notice under Section 9.2(a) from 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 LossIndemnitee, the Indemnity Obligor mayIndemnifying Party will have the duty to either compromise or defend, at its own expense and by giving written notice counsel (reasonably satisfactory to the Indemnified Indemnitee), such Action. The Indemnifying Party within 15 will promptly (and in any event not more than [**] days following its after receipt of the notice of such claim, elect Indemnitee’s original notice) notify the Indemnitee in writing that it acknowledges its obligation to assume indemnify the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and 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 Indemnitee with respect to the LossAction pursuant to this Article 9 and of its intention to either compromise or defend such Action. The Indemnified Once the Indemnifying Party shall 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 separate from counsel employed by the Indemnity Obligor in any such action and to participate thereincontrol the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, but the fees costs, and expenses of such counsel shall be at the Indemnified Party's own expense, unless counsel) if: (ai) the employment thereof has been specifically authorized use of the counsel chosen by the Indemnity ObligorIndemnifying Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, (b) or targets of, such Indemnified Action include both the Indemnifying Party has been advised by counsel and the Indemnitee, and the Indemnitee reasonably satisfactory to the Indemnity Obligor concludes that there may be one or more legal defenses available to it which that are different from or additional to those available to the Indemnity Obligor and Indemnifying Party (in which case the reasonable judgment of such counsel it is advisable for such Indemnified Indemnifying Party to employ separate counsel, or (c) will not have the Indemnity Obligor has failed right to assume the defense of such action and Action on the Indemnitee’s behalf); (iii) the Indemnifying Party does not employ counsel reasonably satisfactory to the Indemnified Party. Whether Indemnitee to represent the Indemnitee within a reasonable time after the Indemnitee’s notice of such Action; (iv) the Indemnifying Party denies or not the Indemnity Obligor chooses fails to timely admit its obligation to defend or prosecute such claim, all and indemnify the parties hereto shall cooperate Action; or (v) in the defense or prosecution thereof and shall furnish such records, 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 reasonable opinion of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor counsel to the Indemnified Party in connection with any Loss arising out of a Third Party ClaimIndemnitee, the Indemnity Obligor shall be subrogated to and shall stand claim could result in the place Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a materially adverse effect on the ongoing business of the Indemnified Indemnitee; provided, however, that in no event shall the Indemnifying Party as be obligated to any events or circumstances in respect bear the fees, costs and expenses 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. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent more than one (1) separate counsel for all of the Indemnified other Party’s Indemnitees in such Action.

Defense. If At 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 request of the circumstances of the LossIndemnified Party, the Indemnity Obligor may, by giving written notice to the Indemnified Indemnifying Party within 15 days following its receipt of the notice of such claim, elect to shall promptly assume the costs of defense or the prosecution thereof, including the employment of an Indemnifiable Claim. The Indemnifying Party shall retain experienced counsel or accountants, reasonably satisfactory to the Indemnified PartyParty and thereafter shall control defense of the claim. Notwithstanding the foregoing, at its cost and 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 retain counsel separate from counsel employed by of its choice and control the Indemnity Obligor defense of the Indemnifiable Claim under any of the following circumstances: (i) The Indemnifying Party fails to assume the defense of an Indemnifiable Claim within five days after receiving written notice of the existence of the claim; or (ii) The Indemnifying Party agrees to 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 and to participate therein, but the fees and expenses of such counsel shall be at impleaded parties) include both the Indemnified Party's own expense, unless (a) Party and the employment thereof has been specifically authorized by Indemnifying Party and the Indemnity Obligor, (b) such Indemnified Party has been is advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which the Indemnified Party that are different from or additional to those available to the Indemnity Obligor and in Indemnifying Party. If the reasonable judgment of Indemnifying Party does not assume such counsel it is advisable for such defense or the Indemnified Party has the right to employ separate counsel, or (c) the Indemnity Obligor has failed to assume control the defense of such action and employ counsel reasonably satisfactory to the Indemnifiable Claim, the Indemnified Party may compromise or settle the Indemnifiable Claim on behalf of and for the account and risk of the Indemnifying Party, who shall be bound by the result. Whether or not In all cases, the Indemnity Obligor chooses party without the right to defend or prosecute such claim, all control the defense of the Indemnifiable Claim may participate in the defense at its own expense. The parties hereto shall cooperate in the defense of all third party claims which may give rise to Indemnifiable Claims hereunder. In connection with the defense of any claim, each party shall make available to the party controlling such defense, any books, records or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be other documents within its control that are reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement the course 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 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 consent of the Indemnified Partydefense.

Defense. If the facts relating to a Loss arise out a Third Party Claimany claim, demand or if there liability is asserted by any claim against a third party available by virtue against any Indemnified Party, the Indemnifying Party shall have the right and shall upon the written request of the circumstances Indemnified Party, defend any Actions brought against the Indemnified Party in respect of the Loss, the Indemnity Obligor may, by giving written notice any Indemnifiable Claims with counsel of its choice reasonably acceptable to the Indemnified Party within 15 days following and, in the case of a Tax-related Action, tax advisors of its receipt of the notice of such claim, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, choice reasonably satisfactory acceptable to the Indemnified Party. In any such action or proceeding, at its cost and 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 to participate thereinretain its own counsel, but the fees and expenses of such counsel shall be at the Indemnified Party's its own expense, expense unless (a) the employment thereof has been specifically authorized by Indemnifying Party and the Indemnity ObligorIndemnified 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 has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor Party, and in the reasonable judgment of such counsel it is advisable for such the Indemnified Party, representation of the Indemnifying Party and the Indemnified Party by the same counsel would be inadvisable due to employ separate counselpotential conflicts of interests between them. The Parties shall cooperate and may participate in the defense of all third-party 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 the 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. If written notice is given to an Indemnifying Party of the commencement of any Action and the Indemnifying Party does not, within twenty (c20) days after the Indemnity Obligor has failed Indemnified Party's written notice is given, give written notice to the Indemnified Party of its election to assume the defense of such action and employ counsel reasonably satisfactory to Action, the Indemnifying Party shall be bound by any determination made in such Action or any compromise or settlement effected by the Indemnified Party. Whether or not In connection with the Indemnity Obligor chooses to defend or prosecute such defense of any claim, all each Party shall make available to the parties hereto shall cooperate in the defense Party controlling such defense, any books, records or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be other documents within its control that are reasonably requested in connection therewith. The Indemnity Obligor shall not be liable the course of or necessary or appropriate 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 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 consent of the Indemnified Partydefense.

Defense. If (a) Promptly after the facts relating receipt by any person entitled to a Loss arise out a Third Party Claim, indemnification under Section 9.2 or if there is 9.3 herein of notice of (i) any claim or (ii) the commencement of any action or proceeding, such party (the "Aggrieved Party") will, if the claim with respect thereto is made against a third any party available by virtue of obligated to provide indemnification pursuant to Section 9.2 or 9.3 herein (the circumstances of the Loss"Indemnifying Party"), the Indemnity Obligor may, by giving give such Indemnifying Party written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect to assume the defense claim or the prosecution thereof, including the employment commencement of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and 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 or proceeding and to participate therein, but shall permit 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 Indemnifying Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of any such claim or 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 employ 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 a reasonable time, but in no event more than 15 days after written notice thereof shall have been given to the Indemnifying Party, shall be deemed a waiver by the Indemnifying Party of its right to defend such action. (b) If the Indemnifying Party assumes the defense of any such claim 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 such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that 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 enter into any settlement, except with the written consent of the Aggrieved Party. (c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Indemnified Aggrieved Party. Whether The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or not the Indemnity Obligor chooses to defend or prosecute such claimotherwise, 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 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 incurred by the Indemnity Obligor to the Indemnified Aggrieved Party in connection with any Loss arising out the defense against or settlement of a Third Party Claim, the Indemnity Obligor such claim or litigation. No settlement of claim or litigation 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 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 made without the consent of the Indemnified Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigation. (d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.

Defense. If The Indemnifying Party shall have the facts relating right to a Loss arise out a Third Party Claimdirect, or if there is any claim against a third party available by virtue through counsel of the circumstances of the Lossits own choosing, the Indemnity Obligor may, by giving written notice to defense or settlement of any action or proceeding brought against the Indemnified Party within 15 days following its receipt in respect of the notice of such claim, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expenseThird Party Claims; provided, however, that during the interim Indemnifying Party 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 shall use or, regardless of the terms of such settlement, if the Indemnifying Party disputes its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss liability with respect to the LossThird Party Claim. The If the Indemnifying Party elects to assume the defense of any such claim or proceed ing, the Indemnified Party may participate in such defense at its own expense. If the Indemnifying Party fails to 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 shall have the right to employ direct, at the Indemnifying Party's sole cost and expense, through counsel separate from counsel employed by of its own choosing, the Indemnity Obligor in defense or settlement of any such action 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 right to participate thereinin 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 foregoing provisions of this Section 10.3(b), but if the fees Indemnifying Party disputes its liability to the Indemnified Party 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 be required to bear the costs and expenses of such counsel shall be at the Indemnified Party's own expensedefense pursuant to this Section 10.3(b), unless (a) and the employment thereof has been specifically authorized Indemnified Party shall reimburse the Indemnifying Party in full for all costs and expenses incurred by the Indemnity Obligor, (b) Indemnifying Party in con nection with such Indemnified Third Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume Claim. The party directing the defense of shall pursue such action defense diligently and employ counsel reasonably satisfactory to the Indemnified Partypromptly. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the The parties hereto shall cooperate in the defense or prosecution thereof shall pursue such defense diligently and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewithpromptly. The Indemnity Obligor parties shall not be liable for any settlement cooperate in 48 57 the defense of all Third Party Claims. In connection with the defense 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, each party shall make available to the Indemnity Obligor shall be subrogated to and shall stand party controlling such defense any books, records or other documents within its control that are reasonably requested in the place course of or necessary or appropriate for such defense, provided appropriate arrangements are made to safeguard the Indemnified Party as to any events or circumstances in respect confidentiality 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. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Partymaterials.

Defense. If Upon receipt of notice under Section 11.3.1 (Notice) from the facts relating Indemnitee, the Indemnifying Party will have the duty to a Loss arise out a Third Party either compromise or defend, at its own expense and by counsel (reasonably satisfactory to Indemnitee), such Claim. The Indemnifying - 41 - [*] = Certain confidential information contained in this document, or if there is any claim against a third party available marked by virtue brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the circumstances Securities Exchange Act of the Loss1934, the Indemnity Obligor may, by giving written notice to the Indemnified as amended. Party within 15 days following its will promptly (and in any event not more than [*] after receipt of the notice of such claim, elect Indemnitee’s original notice) notify the Indemnitee in writing that it acknowledges its obligation to assume indemnify the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and 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 Indemnitee with respect to the LossClaim pursuant to this Article 11 (Indemnification; Insurance) and of its intention either to compromise or defend such Claim. The Indemnified Once the Indemnifying Party shall gives such notice to the Indemnitee, (a) the Indemnifying Party will have the right to employ 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 separate from counsel employed or any other expenses subsequently incurred by the Indemnity Obligor 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 such action Claim and to participate therein, but the fees and expenses retain counsel of its choice for such counsel shall purpose; provided that such retention will be at the Indemnified Party's Indemnitee’s own expense, cost and expense unless (ai) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Indemnifying Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ retain counsel reasonably satisfactory to in accordance with this Section 11.3.2 (Defense) (in which case the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in indemnified Party will control the defense at the Indemnifying Party’s cost and expense), or prosecution thereof (ii) the interests of the Indemnitee and shall furnish the Indemnifying Party with respect to such records, 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 Claim are sufficiently adverse to prohibit the event of payment representation by the Indemnity Obligor to the Indemnified Party in connection with same counsel of both Parties under any Loss arising out of a Third Party Claimlegal requirement, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events ethical rules, 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. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Partyequitable principles.

Defense. If (i) In the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against case of a third party available by virtue of the circumstances of the Lossclaim, the Indemnity Obligor mayIndemnifying Party may participate in the defense thereof and, by giving written notice if it so chooses and irrevocably acknowledges its obligation to indemnify the Indemnified Party within 15 days following its receipt of the notice of such claimtherefor, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and 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 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 may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume control the defense of such action and employ an Indemnifiable Claim with counsel reasonably satisfactory to the Indemnified Party. Whether ; provided, how- ever, that if the Indemnified Party reasonably believes that (x) a material conflict of interest between the Indemnified Party and the Indemnifying Party with respect to the claim or not its defense exists or is likely to develop during the Indemnity Obligor chooses pendency of the litiga- tion, 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 prosecute (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 parties hereto shall cooperate party without the right to control the defense of the In- demnifiable Claim may participate in the defense or prosecution thereof 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 shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewithirrevocably 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 Obligor 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, which consent shall not be liable for any settlement of any unreasonably withheld, delayed or conditioned; provided that such claim effected without its prior written consent. In the event 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 payment Hazardous Sub- stances that is covered by the Indemnity Obligor Section 5.18 shall remain subject in all respects to the Indemnified Party in connection with any Loss arising out terms 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 have any right or claim against such third party relating to such indemnified matterSection 5.18. The Indemnified Party shall cooperate with not settle or compromise a third party claim for which it is entitled to indemnification hereunder without the Indemnity Obligor in prosecuting prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the de- fense of any subrogated claim. The Indemnity Obligor will take no action in connection with any third party claim that would adversely affect 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 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 In- demnifying Party, but the Indemnifying Party will not be bound by any compromise or settlement effected without its consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnified Party shall conduct the defense in good faith and in a commercially reasonable manner, and shall inform the Indem- nifying 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 subject to the consent of the Indemnified Indemnifying Party, such consent not to be unreasonably with- held or delayed. The Indemnifying Party may participate in the defense thereof, at its own expense. If, in order to preserve existing insurance for a claim against IPC cur- rently maintained by Dynegy, it is necessary to permit Dynegy’s insurer to conduct the defense of IPC, Purchaser will consider in good faith waiving or sharing its right to control such defense so that Dynegy’s insurance rights are not lost, subject to the 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. If any of the facts relating indemnified parties is made or threatened ------- to be made a Loss arise out a Third Party Claimdefendant in or party to any action or proceeding, judicial or if there administrative, instituted by any third Person for the liability under which or the costs or expenses of which any of the indemnified parties is entitled to be indemnified pursuant to Paragraph 18 (any claim against a such third party available by virtue of the circumstances of the Lossaction or proceeding being referred to as an "Indemnification Claim"), the Indemnity Obligor may, by giving written indemnified party or parties shall give prompt notice thereof to the Indemnified Party within 15 days following 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 receipt of the notice of such claimown expense, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and 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 claim or any litigation to participate thereinwhich this Paragraph 18.4 may be applicable, 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 indemnified party or parties; provided, -------- that there 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 be one not adequately represent, the indemnified party or more legal defenses available parties' interests), to it which are different from or additional to those available to the Indemnity Obligor and participate in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to 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, all action or proceeding and to be represented by attorneys of its or their own choosing. If the indemnified party or parties hereto shall cooperate elects to participate in the defense such defense, such party or prosecution thereof and shall furnish such records, 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 have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall parties will cooperate with the Indemnity Obligor indemnifying party in prosecuting any subrogated claimthe conduct of such defense. The Indemnity Obligor will take no action in connection with indemnified party or parties may not concede, settle or compromise any claim that would adversely affect the Indemnified Party Indemnification Claim without the consent of the Indemnified Partyindemnifying party. The indemnifying party, in the defense of any such claim or litigation, shall not, except with 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 complete release from all liability in respect to such claim or litigation.

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there any such action is any claim brought against a third party available by virtue of the circumstances of the Lossan indemnified party, the Indemnity Obligor mayindemnifying Party will be entitled to participate in and to assume the defense thereof to the extent that it may wish, with counsel reasonably satisfactory to such indemnified party, by giving written notice to the Indemnified Party indemnified party within 15 thirty (30) days following of its receipt of the written notice of such claimaction from the indemnified party, elect and after such notice from the indemnifying Party to such indemnified party of the indemnifying Party’s election to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified indemnifying Party shall use its best efforts not be liable to take all action (not including settlement) reasonably necessary to protect against further damage such indemnified party for any legal or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed other expenses subsequently incurred by the Indemnity Obligor latter in any such action and to participate therein, but connection with the fees and expenses of such counsel shall be at defense thereof unless the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified indemnifying Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed PURCHASE AND SALE AGREEMENT -49- to assume the defense of such action claim and to employ counsel reasonably satisfactory to such indemnified party. Notwithstanding any of the Indemnified foregoing to the contrary, the indemnified party will be entitled to select its own counsel and assume the defense of any action brought against it if (i) 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. Whether or not As a condition to the Indemnity Obligor chooses to defend or prosecute such claimindemnifying Party’s obligations hereunder, all the parties hereto shall 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 prosecution thereof and shall furnish such recordsenter into any settlement with respect to a claim either (a) without the consent of the indemnified party, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor which consent shall not be liable for 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 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 Claimaction, 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 defense 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. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party has been assumed by an indemnifying Party, without the consent of the Indemnified such indemnifying Party, which consent shall not be unreasonably withheld.

Defense. If In the facts relating to event any action, suit or proceeding (a Loss arise out a Third Party Claim"LEGAL ACTION") is brought against an indemnified party, 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 written notice to the Indemnified Party 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 counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and 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 which the Lossindemnifying party may have liability under an indemnity agreement contained herein, the 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 indemnified party shall have the right to employ be represented by counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate thereinaccountants, but the fees and expenses of such counsel shall be at the Indemnified Party's its own expense, unless (a) and 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 employment thereof has been specifically authorized by indemnifying party shall have so assumed the Indemnity Obligordefense of any Legal Action, (b) such Indemnified Party has been advised by counsel or if the indemnified party shall have reasonably satisfactory to the Indemnity Obligor concluded that there may are likely to be one or more legal defenses available to it which the indemnified party that are different from or additional in addition to those available to the Indemnity Obligor and indemnifying party (in which case the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed indemnifying party shall not be entitled to assume the defense of such action Legal Action but shall have the right to be represented by counsel and employ counsel 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 satisfactory incurred by the indemnified party shall be borne by the indemnifying party. The indemnifying party shall make available to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, indemnified party and its attorneys and accountants all the parties hereto shall cooperate in the defense or prosecution thereof books and shall furnish such records, 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 records of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third indemnifying party relating to such indemnified matter. The Indemnified Party shall cooperate with Legal Action and the Indemnity Obligor parties hereto agree to render to each other such assistance as they may reasonably require of each other in prosecuting order to facilitate the proper and adequate defense of any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Partysuch Legal Action.

Defense. (a) If the facts relating pertaining to a Loss arise out a Third Party Claimof the claim of any third party, 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 written notice to the Indemnified Party within 15 thirty (30) days following its receipt of the notice of such claim, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, accountants at its cost and 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. ; 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 ’s own expense, expense unless (aA) the employment thereof has been specifically authorized counsel selected by the Indemnity Obligor shall be unwilling or unable to represent the Indemnified Party, or (B) a legal conflict of interest exists between the Indemnity Obligor and the Indemnified Party such that joint representation would be inappropriate, or (C) a court of competent jurisdiction determines that the Indemnity Obligor failed or is failing to vigorously prosecute or defend such claims, in each of which cases the reasonable fees and expenses of separate counsel engaged by the Indemnified Party shall also be a Loss for which indemnity is provided by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or . (c) the Indemnity Obligor has failed to 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, 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 trial 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 that the Indemnity Obligor shall obtain the prior written consent of the Indemnified 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 shall not be unreasonably withheld or delayed. In the event and to the extent of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claimthird party claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party 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. The Indemnity Obligor will take no action in connection with any claim that would adversely affect , and the reasonable fees and expenses incurred by the Indemnified Party without in providing such cooperation shall also be a Loss for which indemnity is provided by the consent of the Indemnified PartyIndemnity Obligor.

Defense. If With respect to any Proceedin▇, ▇▇▇▇ath RentCorp will be entitled to participate in the facts relating Proceeding at ▇▇▇ ▇▇n expense. Except as otherwise provided below, to a Loss arise out a Third Party Claimthe extent McGrath RentCorp so desires, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor it may, by giving upon delivery of written notice ▇▇ ▇▇▇▇xx, assume the defense of any Proceeding with counsel reasonably satisfactory to the Indemnified Party within 15 days following its receipt of the notice of such claimXxxxxx. However, elect McGrath RentCorp shall not be entitled to assume the defense of any P▇▇▇▇▇▇▇ng (i) brought by or on 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 prosecution thereofProceeding 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, including if McGrath RentCorp assumes the employment defense of counsel or accountantsthe Proceeding, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to McGrath RentC▇▇▇ ▇▇▇ll take all action necessary steps in good faith to defe▇▇, ▇▇▇tle or otherwise dispose of the Proceeding. 5.2.2 After written notice from McGrath RentCorp to Xxxxxx of its election to assume the 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 defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (not including settlementi) reasonably necessary to protect against further damage or loss with respect to the Lossthrough (iv) below. The Indemnified Party Xxxxxx shall have the right to employ Xxxxxx's own counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate thereinProceeding, but all Expenses related thereto incurred after written notice from McGrath RentCorp of its assumption of the fees and expenses of such counsel defense shall be at the Indemnified Party's own expenseXxxxxx'▇ ▇▇▇▇▇se, unless unless: (ai) the employment thereof of counsel by Xxxxxx has been specifically authorized by the Indemnity Obligor, McGrath RentCorp; (bii) such Indemnified Party Xxxxxx has been advised by counsel reasonably satisfactory to the Indemnity Obligor that determined there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor ▇ ▇▇▇▇▇ict of interest between Xxxxxx and McGrath RentCorp in the reasonable judgment defense of such the Proceeding; (iii) after a Chan▇▇ ▇▇ ▇ontrol, the employment of counsel it is advisable for such Indemnified Party to employ separate counsel, by Xxxxxx has been approved by Independent Counsel; or (civ) McGrath RentCorp shall not, in fact, assume and conduct the Indemnity Obligor has failed defense o▇ ▇▇▇▇ Proceeding within a reasonable time after giving written notice of its election to assume the defense of such action and employ counsel reasonably satisfactory to Proceeding. 5.2.3 Any Expenses incurred by McGrath RentCorp in defense of the Indemnified Party. Whether Proceeding under this Section 5.2 (▇▇▇▇▇▇ in a situation described in clause (i), (ii) or not the Indemnity Obligor chooses 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 trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement (iv) 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 Section 5.2.2) shall be subrogated considered Expenses advanced by McGrath RentCorp 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 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 consent of the Indemnified PartyXxxxxx under Section 3 above.

Defense. If Upon receipt of notice under this Section 12.3 from the facts relating Indemnitee, the Indemnifying Party will have the duty to a Loss arise out a Third either compromise or defend, at its own expense and by counsel selected by the Indemnifying Party (reasonably satisfactory to Indemnitee) such Claim, or if there is . The Indemnifying Party will promptly (and in any claim against a third party available by virtue event not more than twenty (20) days after receipt of the circumstances 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 12 and of its intention either to compromise or defend such Claim. Once the Loss, the Indemnity Obligor may, by giving written Indemnifying Party gives such notice to the Indemnified Indemnitee, the Indemnifying Party within 15 days following 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 out of pocket Third Party expenses related to its receipt of investigation and cooperation, except as otherwise provided in the notice of such claimnext sentence. As to all Claims as to which the Indemnifying Party has assumed control under this Section 12.3(b), elect the Indemnitee shall have the right to assume employ separate counsel and to participate in the defense or of a Claim (as reasonably directed by the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Indemnifying Party, ) at its cost and own expense; provided, however, that during if the interim Indemnitee shall have reasonably concluded, based upon a written opinion from outside legal counsel, that there is a conflict of interest between the Indemnified Indemnifying Party and the Indemnitee in the defense of such 31 DB1/ 138274066.17 Claim, the Indemnifying 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 pay the fees and expenses of one law firm serving as counsel for the Indemnitee in relation to 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 may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to 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, 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 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 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 consent of the Indemnified Party.

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there any such action is any claim brought against a third party available by virtue of the circumstances of the Lossan indemnified party, the Indemnity Obligor mayindemnifying Party will be entitled to participate in and to assume the defense thereof to the extent that it may wish, with counsel reasonably satisfactory to such indemnified party, by giving written notice to the Indemnified Party indemnified party within 15 thirty (30) days following of its receipt of the written notice of such claimaction from the indemnified party, elect and after such notice from the indemnifying Party to such indemnified party of the indemnifying Party’s election to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified indemnifying Party shall use its best efforts not be liable to take all action (not including settlement) reasonably necessary to protect against further damage such indemnified party for any legal or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed other expenses subsequently incurred by the Indemnity Obligor latter in any such action and to participate therein, but connection with the fees and expenses of such counsel shall be at defense thereof unless the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified indemnifying Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action claim and to employ counsel reasonably satisfactory to such indemnified party. Notwithstanding any of the Indemnified foregoing to the contrary, the indemnified party will be entitled to select its own counsel and assume the defense of any action brought against it if (i) 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. Whether or not As a condition to the Indemnity Obligor chooses to defend or prosecute such claimindemnifying Party’s obligations hereunder, all the parties hereto shall 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 prosecution thereof and shall furnish such recordsenter into any settlement with respect to a claim either (a) without the consent of the indemnified party, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor which consent shall not be liable for 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 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 Claimaction, 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 defense 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. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party has been assumed by an indemnifying Party, without the consent of the Indemnified such indemnifying Party, which consent shall not be unreasonably withheld.

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there Claim is any claim made against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party, then the Indemnifying Party within 15 shall be entitled to participate in the defense thereof at its sole cost and expense, and, if the Indemnifying Party so chooses, it shall have twenty (20) days following from its receipt of the notice of such claim, elect Indemnification Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense or thereof with counsel selected by the prosecution thereof, including the employment of counsel or accountants, Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided, at its cost that the Indemnifying Party shall not be entitled to assume the defense, and expenseshall 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 not assumed the defense thereof. If the Indemnifying Party so elects to assume the defense of a Third Party Claim (in accordance with this Section 8.5(b)), 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; provided, however, that during (i) prior to assuming the interim 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 use its best efforts not signify any agreement, obligation or commitment on the part of the Indemnifying Party to take all action assume or pay any amount awarded to a claimant in respect of such Third Party Claim. If the Indemnifying Party assumes such defense (not including settlement) reasonably necessary to protect against further damage or loss in accordance with respect to this Section 8.5(b)), then the Loss. The Indemnified Party shall have the right to participate in the defense thereof and to employ counsel counsel, at its own expense, separate from the counsel employed by the Indemnity Obligor in any Indemnifying Party, it being understood, however, that the Indemnifying Party shall control such action and to participate therein, but defense. If 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 Indemnifying Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to 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 claimany Third Party Claim, all then the parties hereto Parties shall cooperate in the defense or prosecution thereof of such Third Party Claim. Such cooperation shall include the retention and shall furnish (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records that are reasonably relevant to such recordsThird Party Claim, and making employees available on a mutually convenient basis to provide additional information and testimony and explanation of any material provided hereunder. Notwithstanding any other provision of this Agreement, the Indemnifying Party shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor not enter into a settlement of any Third Party Claim without the prior written consent of the Indemnified Party (which consent shall not be liable 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 settlement statement of liability, wrongdoing, criminal offense or finding or admission of any such claim effected without its prior written consent. In the event violation of payment Law by the Indemnity Obligor to the Indemnified Party and provides, in customary form, for the full, complete and unconditional release of each Indemnified Party from all liabilities and obligations in connection with any Loss arising out such Third Party Claim. If the Indemnifying Party (x) has not within the Notice Period notified the Indemnified Party of its election to assume defense of a Third Party Claim, the Indemnity Obligor shall be subrogated (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 actively and shall stand in the place of good faith, then the Indemnified Party as shall (upon further written notice) have the right to any events defend and compromise or circumstances settle of such Third Party Claim or consent to the entry of judgment with respect to such Third Party Claim, in respect each case at the cost and expense of which the Indemnifying Party. If the Indemnified Party may have has assumed the defense pursuant to this Section 8.5(b), it shall not agree to any right settlement which imposes any obligation on the Indemnifying Party (including the imposition of an injunction or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with other equitable relief) or which provides for the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with statement of liability, wrongdoing, criminal offense or finding or admission of any claim that would adversely affect violation of Law by the Indemnified Indemnifying Party without the prior written consent of the Indemnified Indemnifying Party (which consent shall not be unreasonably withheld or delayed), and no such settlement shall be determinative of the Indemnifying Party’s obligations under this Article 8.

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there is In connection with any claim against giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third person who is not a party available by virtue of the circumstances of the Lossto this Agreement, the Indemnity Obligor Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, by giving 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 15 fifteen (15) days following its after receipt of notice from the notice Indemnified Party, its obligations to indemnify the Indemnified Party with respect to all elements of such claim, elect (b) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to assume the defense 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 prosecution thereofthird-party claim is not, including in the employment good faith judgment of counsel or accountants, reasonably satisfactory to the Indemnified Party, likely to establish a pattern or practice adverse to the continuing business interests of the Indemnified Party. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its cost and own 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 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 if there may be are one or more legal defenses available to it which are different from or additional to the Indemnified Party that conflict with those available to the Indemnity Obligor and in Indemnifying Party, or if the Indemnifying Party fails to take reasonable judgment of such counsel it is advisable for such steps necessary to diligently defend the claim after receiving notice from the Indemnified Party to employ separate counsel, or (c) that it believes the Indemnity Obligor Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such action and employ counsel reasonably satisfactory to 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. Whether or 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 Indemnity Obligor chooses to defend or prosecute defense of such claim, all with its counsel and at its own expense. If the parties hereto shall cooperate Indemnifying Party thereafter seeks to question the manner in the defense or prosecution thereof and shall furnish such records, 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 have defended such third-party claim or the amount or nature of any right or claim against such third party relating to such indemnified matter. The Indemnified settlement, the Indemnifying Party shall cooperate with have the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim burden to prove by a preponderance of the evidence that would adversely affect the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation, to each other such assistance as they may reasonably require of each other in order to insure the consent proper and adequate defense of the Indemnified Partyany action, suit or proceeding, whether or not subject to indemnification hereunder.

Defense. If In case any claim, demand or deficiency (a "CLAIM") is asserted or any action is commenced or notice is given of any administrative or other proceeding against the facts relating person(s) and/or entities seeking indemnity under this SECTION 11 (hereinafter referred to a Loss arise out a Third Party Claimas the "INDEMNITEE") in respect of which such indemnity is sought hereunder (each and all of such persons and entities being hereinafter referred to as the "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 if there prior to such earlier date as any answer in any administrative or other proceeding is any claim against a third party available by virtue of the circumstances of the Lossdue), the Indemnity Obligor may, by giving Indemnitor may give Indemnitee written notice of its election to conduct the Indemnified Party within 15 days following defense of such Claim at its receipt of the own expense. If Indemnitor has given Indemnitee such notice of such claimelection to conduct the defense, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party 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 Loss. The Indemnified Party shall nevertheless have the right to employ counsel separate from counsel employed by participate in the Indemnity Obligor in any such action and to participate thereindefense thereof, but the fees and expenses of such counsel participation shall be solely at its expense. If Indemnitor shall not notify Indemnitee in writing (within the Indemnified Party's own expense, unless (atime hereinabove provided) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory of its election to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume conduct the defense of such action and employ counsel reasonably satisfactory to Claim, Indemnitee may (but need not) conduct (at the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in expense of Indemnitor) the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewithof any Claim. The Indemnity Obligor party assuming the defense of a Claim hereunder (the "DEFENDING PARTY") shall not be liable for notify the other party of its intention to settle, compromise or satisfy any settlement such Claim and may make such settlement, compromise or satisfaction unless such other party (the "ASSUMING PARTY") shall notify the Defending Party in writing (within thirty (30) days after receipt of such notice of intention to settle, compromise or satisfy) of its election to assume (at its sole expense) the defense of any such claim effected without its prior written consentClaim and promptly thereafter take appropriate action to implement such defense. In The Assuming Party shall indemnify the event Defending Party and hold it harmless against any losses in excess of payment by the Indemnity Obligor to amount of losses the Indemnified Defending Party would have incurred if the proposed settlement had been agreed upon. Indemnitee shall cooperate with Indemnitor in such defense, at Indemnitor's cost, and Indemnitee shall provide reasonable assistance of Indemnitee's employees 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 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 consent of the Indemnified Partydefense.

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there Claim is any claim made against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party, then the Indemnifying Party within 15 days following shall be entitled to participate in the negotiation, settlement and defense thereof with counsel of its receipt of choice and, if the notice of such claimIndemnifying Party so chooses, elect to assume the negotiation, settlement and defense or thereof with counsel selected by the prosecution thereof, including the employment of counsel or accountants, 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 assumed the defense thereof. If the Indemnifying Party so elects to assume the defense of a Third Party Claim, at its cost then the Indemnifying Party shall not be liable to the Indemnified Party for the fees and expenseexpenses of counsel subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, that during (i) prior to assuming the interim 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 use its best efforts not signify any agreement, obligation or commitment on the part of the Indemnifying Party to take all action (not including settlement) reasonably necessary assume or pay any amount awarded to protect against further damage or loss with a claimant in respect to of such Third Party Claim. If the Loss. The Indemnifying Party assumes such defense, then the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel counsel, at its own expense, separate from the counsel employed by the Indemnity Obligor in any Indemnifying Party, it being understood, however, that the Indemnifying Party shall control such action and to participate therein, but defense. If 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 Indemnifying Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to 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 claimany Third Party Claim, all then the parties hereto Parties shall cooperate in the defense or prosecution thereof of such Third Party Claim. Such cooperation shall include the retention and shall furnish (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records that are reasonably relevant to such recordsThird Party Claim, and making employees available on a mutually convenient basis to provide additional 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 explanation of any such claim effected without its prior written consentmaterial provided hereunder. In If the event Indemnifying Party has not within thirty (30) Business Days after receipt of payment by the Indemnity Obligor an Indemnification Notice relating to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated chosen to assume defense of a Third Party Claim or fails to defend such Third Party Claim actively and shall stand in the place of good faith, then the Indemnified Party as shall (upon further written notice) have the right to any events or circumstances in respect of which the Indemnified defend such Third Party may have any right or claim against such third party relating to such indemnified matterClaim. The Indemnified Party shall cooperate with not take any action the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with purpose of which is to prejudice the defense of any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Partysubject to indemnification hereunder or to induce a third party to assert a claim subject to indemnification hereunder.

Defense. (a) If the facts relating pertaining to a Loss arise out a Third Party Claimof the claim of any third party, 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 written notice to the Indemnified Party within 15 twenty (20) days following its receipt of the notice of such claim, elect to assume the defense or the prosecution thereofof such claim, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, accountants at its cost and 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 to participate thereinin such action, but the fees and expenses of such counsel shall be at the Indemnified Party's Indemnity Obligor’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 may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to 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 claiman indemnification claim under Section 9.4(a), all the parties hereto to this Agreement shall cooperate in the defense or prosecution thereof of such claim and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial trials as may be reasonably requested in connection therewith. The Each party shall act in good faith and in a commercially reasonable manner in addressing any liabilities that may provide the basis for an indemnifiable claim. (c) No Indemnity Obligor shall not be liable for may settle any settlement of any claim affecting an Indemnified Party without such claim effected without its Indemnified Party’s prior written consent, not to be unreasonably withheld, conditioned or 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 in connection with any Loss arising out of a Third Party Claimthird party claim, the Indemnity Obligor shall not be subrogated to and shall not stand in the place of the Indemnified Party 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. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Party.

Defense. If In the facts relating event any person or entity not a party to this Agreement shall make a Loss arise out a Third 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 Claimin 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 if there is any claim against a third party available by virtue parties of the circumstances of the Lossdemand, the Indemnity Obligor may, claim or lawsuit. Within ten (10) days after notice by giving written notice to the Indemnified Party within 15 days following its receipt of (the notice "Notice") to an Indemnifying Party of such claimdemand, elect claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to assume the defense or the prosecution thereof, including the employment of retain counsel or accountants, reasonably satisfactory to for the Indemnified Party, at its cost and expense; providedto defend any such demand, howeverclaim or lawsuit, provided that during counsel who will conduct the interim defense of such demand, claim or lawsuit will be approved by the Indemnified Party shall use its best efforts to take all action (whose approval will not including settlement) reasonably necessary to protect against further damage or loss with respect to the Lossunreasonably be withheld. 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 thereinright, but the fees and expenses of such counsel shall be at the Indemnified Party's its own expense, unless 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 employment thereof has been specifically authorized 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 Indemnity Obligorsame 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 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 reasonably satisfactory to the Indemnity Obligor chosen by it that there may be one or more legal defenses available to it such Indemnified Party which are different from or additional to those available to and which have not been asserted by the Indemnity Obligor and in Indemnifying Party, the reasonable judgment Indemnifying Party will not have at the election of such counsel it is advisable for such the Indemnified Party Party, the right to employ separate counsel, or (c) the Indemnity Obligor has failed to assume continue the defense of such action demand, claim or lawsuit on behalf of such Indemnified Party and employ will reimburse such Indemnified Party and any person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel reasonably satisfactory to retained by the Indemnified Party. Whether or not Party to undertake the Indemnity Obligor chooses 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 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 consentdefense. In the event of payment by that the Indemnity Obligor Indemnifying Party shall fail 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 respond within ten (10) days after receipt of the Indemnified Party as to any events or circumstances in respect of which Notice, the Indemnified Party may have any right retain counsel and conduct the defense of such demand, claim or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with lawsuit, as it may in its sole discretion deem proper, at 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 consent sole cost and expense of the Indemnified Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Except as explicitly provided in this Section 9.3(b), failure to provide Notice shall not limit the rights of such party to indemnification.

Defense. If In the facts relating to a Loss arise out a event any Third Party Claimmakes 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, or if there is in the event that a potential Loss comes to the attention of any claim against a third party available Party in respect of matters embraced by virtue 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 circumstances of the Lossdemand, the Indemnity Obligor may, by giving claim or lawsuit. Within ten days after written notice to by the Indemnified Party within 15 days following its receipt of (the notice “Notice”) to an Indemnifying Party of such claimdemand, elect claim or lawsuit, except as provided in the next sentence, the Indemnifying Party will have the option, at its sole cost and expense, to assume retain counsel 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 the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to lawsuit will be approved by the Indemnified Party, which approval will not unreasonably be withheld. The Indemnified Party will have the right, at its cost and 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, that during if (A)(i) the interim 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 potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party shall use its best efforts to take all action and (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 (aii) the employment thereof has been specifically authorized of counsel by the Indemnity Obligor, (b) such Indemnified Party has been advised authorized in writing by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counselIndemnifying Party, or (cB) the Indemnity Obligor Indemnifying Party has failed not in fact employed counsel to assume the defense of such action and employ counsel reasonably satisfactory to within a reasonable time; then, the Indemnified Party will have the 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. Whether or not the Indemnity Obligor chooses to defend or prosecute such claimNo Indemnifying Party, 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 trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such demand, claim effected without its prior written consent. In the event or lawsuit, will consent to entry 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 judgment or enter into 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. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party settlement without the consent of the Indemnified Party which consent will not be unreasonably withheld. In the event that the Indemnifying Party will fail to respond within twenty days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, 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. Failure to provide Notice will not limit the rights of such party to indemnification, except to the extent the Indemnifying Party’s defense of the action is prejudiced by such failure.

Defense. If the facts relating to a Loss arise out a Third Party Claimany claim, demand or if there liability is asserted by any claim against a third party available by virtue of the circumstances of the Lossagainst any Indemnified Party, the Indemnity Obligor mayIndemnifying Party shall be entitled to participate therein and defend any action or proceeding brought against the Indemnified Party in respect of matters embraced by the indemnity, and the Indemnifying Party shall have the right to conduct and control the defense subject to the Indemnified Party's approval in writing of outside counsel selected by giving written the Indemnifying Party. After notice from the Indemnifying Party to the Indemnified Party within 15 days following of its receipt of the notice of such claim, elect election to assume the defense of such claim or action, the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory Indemnifying Party shall not be liable to the Indemnified Party, at its cost and expense; provided, however, that during the interim Party under this Section 10 for any legal or other expenses subsequently incurred by the Indemnified Party shall use its best efforts to take all in connection with the defense thereof other than reasonable costs of investigation. In any action (not including settlement) reasonably necessary to protect against further damage or loss with respect to defended by the Loss. The Indemnifying Party the Indemnified Party shall have the right to employ be represented by its own counsel separate from counsel employed by at its own expense unless (1) the Indemnity Obligor in any such action and to participate therein, but the fees and expenses employment of such counsel shall be at have been authorized in writing by the Indemnified Party's own expense, unless Indemnifying Party or (a2) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) Indemnifying Party shall not have properly employed counsel reasonably satisfactory to such Indemnified Party has to have charge of the defense of such action; in each of such cases such fees and expenses shall be paid by the Indemnifying Party. In addition, if the named parties to any such action, suit or proceeding (including any impleaded parties) shall include both such Indemnified Party and Indemnifying Party, and such Indemnified Party shall have been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from from, or additional to to, those available to the Indemnity Obligor Indemnifying Party, and in the reasonable judgment of such counsel it is advisable for if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counselcounsel at the expense of the Indemnifying Party, or (c) the Indemnity Obligor has failed Indemnifying Party shall not have the right to assume the defense of such action, suit or proceeding on behalf of such Indemnified Party, and the Indemnified Party may participate in the defense of such action, suit or proceeding and such fees and expenses shall be paid by the Indemnifying Party; it being understood, however, that the Indemnifying Party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and employ expenses of more than one separate firm of attorneys (in addition to any local counsel reasonably satisfactory for all such Indemnified Parties). The Indemnifying Party will not, without Indemnified Party's written consent, settle or compromise any indemnifiable claim or consent to the entry of any judgment in respect thereof unless such settlement, compromise or consent includes an unconditional release of the Indemnified PartyParty from all liability in respect of such Indemnifiable Claim. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the 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 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 have any right or claim against such all third party relating claims which may give rise 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 consent of the Indemnified PartyIndemnifiable Claims hereunder.

Defense. If Upon receipt of notice under Subsection (a) from the facts relating Indemnitee, the Indemnifying Party shall have the duty to a Loss arise out a Third either compromise or defend, at its own expense and by counsel (reasonably satisfactory to Indemnitee) such Action. The Indemnifying Party Claim, or if there is shall promptly (and in any claim against a third party available by virtue event not more than twenty (20) days after receipt of the circumstances Indemnitee's original notice) notify the Indemnitee in writing that it wishes to assume control of the LossAction pursuant to this Section 12 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 Indemnity Obligor may, by giving written Indemnifying Party of any defenses it may assert against any Indemnified Party's claim for indemnification. Once the Indemnifying Party gives such notice to the Indemnified Indemnitee, the Indemnifying Party within 15 days following its receipt is not liable to the Indemnitee for the fees of the notice of such claim, elect to assume the defense or the prosecution thereof, including the employment of other counsel or accountantsany other expenses subsequently incurred by the Indemnitee in connection with such defense, reasonably satisfactory to other than the Indemnified PartyIndemnitee's reasonable costs of investigation and cooperation. However, at its cost and 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 Indemnitee shall have the right to employ separate counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate thereincontrol the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, but the fees costs, and expenses of such counsel shall be at the Indemnified Party's own expense, unless counsel) if: (ai) the employment thereof has been specifically authorized use of the counsel chosen by the Indemnity ObligorIndemnifying Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, (b) or targets of, such Indemnified Action include both the Indemnifying Party has been advised by counsel and the Indemnitee, and the Indemnitee reasonably satisfactory to the Indemnity Obligor concludes that there may be one or more legal defenses available to it which that are different from or additional to those available to the Indemnity Obligor and Indemnifying Party (in which case the reasonable judgment of such counsel it is advisable for such Indemnified Indemnifying Party to employ separate counsel, or (c) shall not have the Indemnity Obligor has failed right to assume the defense of such action and Action on the Indemnitee's behalf); (iii) the Indemnifying Party does not employ counsel reasonably satisfactory to the Indemnified Party. Whether or not Indemnitee to represent the Indemnity Obligor chooses to defend or prosecute Indemnitee within a reasonable time after the Indemnitee's notice of such claim, all the parties hereto shall cooperate Action; or (iv) in the defense or prosecution thereof and shall furnish such records, 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 reasonable opinion of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor counsel to the Indemnified Party in connection with any Loss arising out of a Third Party ClaimIndemnitee, the Indemnity Obligor shall be subrogated to and shall stand claim could result in the place Indemnitee becoming subject to injunctive relief or relief other than the payment of Losses that could have a materially adverse effect on the ongoing business of the Indemnified Indemnitee; provided, however, that in no event shall the Indemnifying Party as be obligated to any events or circumstances in respect bear the fees, costs and expenses 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. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent more than one (1) separate counsel for all of the Indemnified other Party's Indemnitees in such Action.

Defense. If within 10 calendar days after an Indemnitee provides ------- Notice to the facts relating to a Loss arise out a Indemnifying Party of any Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of Indemnitee receives Notice from the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Indemnifying Party within 15 days following its receipt of the notice of that such claim, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and 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 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 Indemnifying Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed elected to assume the defense of such action and employ counsel reasonably satisfactory to Third Party Claim, the Indemnified Party. Whether or not the Indemnity Obligor chooses 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 trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall Indemnifying Party will not be liable for any legal expenses subsequently incurred by the Indemnitee in connection with the defense thereof. The Indemnitee shall be entitled to participate in the defense of such Third Party Claim and to employ counsel for such purpose at the sole cost and expense of Indemnitee. Without the prior written consent of the Indemnitee, the Indemnifying Party will not enter into any settlement of any such claim effected without its prior written consentThird Party Claim which would lead to liability or create any financial or other obligation on the 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. In the event of payment by the Indemnity Obligor If a firm offer is made to the Indemnified Party in connection with any Loss arising out of settle a Third Party ClaimClaim without leading to liability or the creation of a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder (or which would not impose any injunctive or other equitable remedy on the Indemnitee) and the Indemnifying Party desires to accept and agree to such offer, the Indemnity Obligor shall be subrogated Indemnifying Party will give Notice to and shall stand the Indemnitee to 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 place maximum liability of the Indemnified Indemnifying Party 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 Third Party shall cooperate with Claim will be the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect amount of such settlement offer, plus reasonable costs and expenses paid or incurred by the Indemnified Party without Indemnitee up to the consent date of the Indemnified Partysuch notice.

Defense. If The procedures to be followed by any party with respect to indemnification hereunder regarding claims by third persons shall be as follows: 49 (a) Promptly after receipt by any party of notice of the facts relating to a Loss arise out a Third Party Claim, commencement of any action or if there is the assertion of any claim against by a third person which the party available receiving such notice has reason to believe may result in a claim by virtue it for indemnity pursuant to this Agreement, such party (each, an "Indemnified Party") shall give a notice of such action or claim to the circumstances other party against whom indemnification pursuant hereto is sought (each, an "Indemnifying Party"), setting forth in reasonable detail the nature of such action or claim, including copies of any written correspondence from such third party to such Indemnified Party. The failure to give notice as required by the Loss, immediately preceding sentence shall not result in a waiver of any right to indemnification hereunder except to the Indemnity Obligor extent the Indemnifying Party is actually and materially prejudiced by reason of such failure or delay. The indemnifying Party may, by giving written at its own expense, assume and control the defense of any claim for which it has received notice to in accordance with this Section 13.5 and notify the Indemnified Party within 15 days of such assumption. The Indemnified Party shall be entitled to participate therein after such assumption, the costs of such participation following such assumption to be at its receipt own expense. Upon assuming such defense, the Indemnifying Party shall have full rights to enter into any monetary compromise or settlement which is dispositive of the notice of such claim, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expensematters involved; provided, however, that during no such settlement shall be made without the interim prior written consent of the Indemnified Party, which shall not be unreasonably withheld; (b) If the Indemnifying Party does not assume the defense of any claim promptly after receiving notice thereof by the Indemnified Party, the Indemnified Party may assume and control the defense of and contest such action with counsel chosen by it and approved by the Indemnifying Party, which approval shall use not be unreasonably withheld. The Indemnifying Party shall be entitled to participate in the defense of such action, the cost of such participation to be at its best efforts own expense. The Indemnifying Party shall be obligated to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect pay the reasonable attorneys' fees and expenses of the Indemnified Party to the Lossextent that such fees and expenses relate to claims as to which indemnification is due under this Section 13.5(b). The Indemnified Party shall have the right full rights 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 may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense dispose of such action and employ counsel reasonably satisfactory to enter into any monetary compromise or settlement; provided, however, that no such settlement shall be made without the Indemnified prior written consent of the Indemnifying Party. Whether or not the Indemnity Obligor chooses 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 trial as may be reasonably requested in connection therewith. The Indemnity Obligor which shall not be liable for unreasonably withheld; and (c) Both the Indemnifying Party and the Indemnified Party shall reasonably cooperate fully (but not including the waiver of any privileged communication) with one another in connection with the defense, compromise or 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 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 consent of the Indemnified Partyaction.

Defense. If In the facts relating event any person or entity not a party to this Agreement shall make a Loss arise out a Third Party Claimdemand or claim, file or if there is threaten to file or continue any lawsuit, which demand, claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice or lawsuit may result in liability to the an Indemnified Party within 15 days following its receipt in respect of matters embraced by the notice of such claimindemnity under this Agreement, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim then the Indemnified Party shall use its best efforts to take all action promptly notify the Indemnifying Party of the demand, claim or lawsuit. Within fifteen (not including settlement15) reasonably necessary to protect against further damage or loss with respect days after delivery of the Indemnification Notice to the LossIndemnifying 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, to retain counsel 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 or delayed. 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 thereinright, but the fees and expenses of such counsel shall be at the Indemnified Party's its own expense, unless 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 (ai) 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 (ii) the employment thereof has been specifically authorized of counsel by the Indemnity Obligor, (b) such Indemnified Party has been advised authorized in writing by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counselIndemnifying Party, or (ciii) the Indemnity Obligor Indemnifying Party has failed not in fact employed counsel to assume the defense of such action and employ counsel reasonably satisfactory to within fifteen (15) days after delivery of the Indemnification Notice; 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. Whether or not the Indemnity Obligor chooses to defend or prosecute such claimNo Indemnifying Party, 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 trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such demand, claim effected without its prior written consent. In the event or lawsuit, shall consent to entry 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 judgment or enter into 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. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party settlement without the consent of the Indemnified Party. In the event that the Indemnifying Party shall fail to respond within 15 days after delivery of the Indemnification Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, 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. Failure to provide an Indemnification Notice shall not limit the rights of any party to indemnification, except to the extent that the Indemnifying Party is actually prejudiced thereby.

Defense. If An indemnifying Party shall, except as provided in the facts relating to a Loss arise out a Third Party Claimimmediately following sentence and the last sentence of this paragraph, 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 written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect to assume the defense or the prosecution thereofof such Claim, including the employment of with counsel or accountants, reasonably satisfactory to the Indemnified Partyindemnified Party to represent the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, at its cost and 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 any indemnified Party shall have the right to employ retain its own counsel separate from counsel employed by and participate in the Indemnity Obligor in any defense of such action and to participate thereinClaim, but the fees and expenses expense of such counsel shall be at the Indemnified Party's own expense, unless expense of such indemnified Party unless: (ai) the employment thereof has been specifically authorized indemnifying Party and the indemnified Party shall have mutually agreed to the retention of such counsel; or (ii) 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 Indemnity Obligorsame counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, (b) such Indemnified in respect of the legal expense of any indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one in connection with any proceeding or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and related proceedings in the reasonable judgment same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such counsel it is advisable for indemnified Parties and that all such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action fees and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto expenses shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial be reimbursed as may be reasonably requested in connection therewiththey are incurred. The Indemnity Obligor indemnifying Party shall not be liable for any settlement of any such claim proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the 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 consent of the Indemnified Party as to indemnified Party, effect any events settlement of any pending or circumstances threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the Indemnified payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may have assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or claim against such third party relating (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor determines in prosecuting good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any subrogated claim. The Indemnity Obligor will take no action in connection with any claim other indemnitees other than as a result of monetary damages that would adversely affect be fully reimbursed by an indemnifying Party under the Indemnified Agreement, or (cc) the indemnifying Party without refuses or fails to timely assume the consent defense of the Indemnified Partysuch Claim; or (3) in case of Customer, pursuant to Section 20.4.

Defense. If An indemnifying Party shall, except as provided in the facts relating to a Loss arise out a Third Party Claimimmediately following sentence and the last sentence of this paragraph, 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 written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect to assume the defense or the prosecution thereofof such Claim, including the employment of with counsel or accountants, reasonably satisfactory to the Indemnified Partyindemnified Party to represent the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, at its cost and 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 any indemnified Party shall have the right to employ retain its own counsel separate from counsel employed by and participate in the Indemnity Obligor in any defense of such action and to participate thereinClaim, but the fees and expenses expense of such counsel shall be at the Indemnified Party's own expense, unless expense of such indemnified Party unless: (ai) the employment thereof has been specifically authorized indemnifying Party and the indemnified Party shall have mutually agreed to the retention Exhibit 10.103 of such counsel; or (ii) 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 Indemnity Obligorsame counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, (b) such Indemnified in respect of the legal expense of any indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one in connection with any proceeding or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and related proceedings in the reasonable judgment same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such counsel it is advisable for indemnified Parties and that all such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action fees and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto expenses shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial be reimbursed as may be reasonably requested in connection therewiththey are incurred. The Indemnity Obligor indemnifying Party shall not be liable for any settlement of any such claim proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the 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 consent of the Indemnified Party as to indemnified Party, effect any events settlement of any pending or circumstances threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the Indemnified payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may have assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or claim against such third party relating (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor determines in prosecuting good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any subrogated claim. The Indemnity Obligor will take no action in connection with any claim other indemnitees other than as a result of monetary damages that would adversely affect be fully reimbursed by an indemnifying Party under the Indemnified Agreement, or (cc) the indemnifying Party without refuses or fails to timely assume the consent defense of the Indemnified Partysuch Claim; or (3) in case of Customer, pursuant to Section 20.4.

Defense. If ​ (a) Each Party shall promptly notify the facts relating to a Loss arise out a other Party of any actual or potential claim alleging that the Research, Development, Manufacture, or Commercialization of any Licensed Product infringes, misappropriates, or otherwise violates any Patent Rights, Know-How, or other intellectual property rights of any Third Party Claim, or if there is (“Third Party Infringement”). In any claim against a third party available by virtue of the circumstances of the Losssuch instance, the Indemnity Obligor may, by giving written notice Parties shall as soon as practicable thereafter discuss in good faith the best response to the Indemnified Party within 15 days following its receipt of the 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, elect to assume the defense or the prosecution thereof, including the employment claim of counsel or accountants, reasonably satisfactory to the Indemnified PartyThird Party Infringement, at its cost Gilead’s sole discretion, cost, and 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 and Hookipa shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor be represented in any such action by counsel of its own choice at Hookipa’s sole cost and to participate thereinexpense. ​ 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, 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, AS AMENDED. (b) If Gilead declines or fails to assert its intention to defend any such Indemnified claim of Third Party has been advised Infringement within [***] days following receipt or, as applicable, sending of a notice pursuant to Section 11.4(a), then Hookipa shall have the right (but not the obligation) to defend such claim of Third Party Infringement at Hookipa’s sole discretion, cost and expense, and Gilead shall have the right to be represented in any such action by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor of its own choice at Gilead’s sole cost and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or 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 Indemnity Obligor has failed to assume Licensed Technology is invalid or unenforceable, unless explicitly approved by 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, all the parties hereto shall cooperate other Party in the defense or prosecution thereof and shall furnish such records, 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 consentwriting. In the event that Gilead, subject to Hookipa’s prior approval, enters into any settlement with respect to any actual or potential claim of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party ClaimInfringement which includes the acceptance of any license to Patent Rights, Know-How, or other intellectual property rights owned or otherwise Controlled by any Third Party and necessary or useful for the Indemnity Obligor Research, Development, Manufacture, or Commercialization of any Licensed Product, such settlement shall further be subrogated subject 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 have any right or claim against such third party relating to such indemnified matterSection 9.5(c). 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 consent of the Indemnified Party.​

Defense. If the facts relating pertaining to a Loss arise out a Third Party Claimof the claim of any third party, 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 written notice to the Indemnified Party within 15 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 counsel or accountants, reasonably satisfactory to the Indemnified Party, accountants at its cost and expense; provided, however, that during the interim Indemnity Obligor may assume the defense or prosecution thereof only if (i) it provides evidence reasonably acceptable to the Indemnified Party shall use that it will have the financial resources to defend the claim and satisfy its best efforts to take all action indemnification obligations; (not including settlementii) it obtains counsel which is reasonably necessary to protect against further damage or loss with respect satisfactory to the LossIndemnified 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 informed of all material developments and events relating thereto. Notwithstanding the foregoing, for the avoidance of doubt, the 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 ’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 may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to 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, 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 trial trials as may be reasonably requested in connection therewith. The Indemnity Obligor shall have the right to settle, adjust or compromise such claim; provided, however, that the Indemnified Party shall not be liable or obligated for any settlement such settlement, adjustment or compromise 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 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 consent of the Indemnified Party.

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there is In connection with any claim against which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third party available by virtue person other than the Indemnified Party, the Indemnifying Party, at the sole cost and expense of the circumstances Indemnifying Party (or, in the case of the LossStockholders' Representative, at the Indemnity Obligor sole cost and expense of the Stockholders), may, by giving upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party within 15 days following its receipt acknowledges to the Indemnified Party in writing the obligation of the notice 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 or legal proceeding, elect the Indemnifying Party shall select counsel reasonably acceptable to assume 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 settlement of, or the prosecution thereofentry of any judgment arising from, including any such claim or legal proceeding, without the employment prior written consent of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party (which consent shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage be unreasonably withheld or loss with respect to the Lossdelayed). The Indemnified Party shall have be entitled to participate in (but not control) the right to employ counsel separate from counsel employed by the Indemnity Obligor in defense of any such action action, with its own counsel and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's its own expense, unless . If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 days after the date such claim is made: (a) the employment thereof has been specifically authorized by Indemnified Party 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 Indemnity Obligorsame to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) such Indemnified the Indemnifying Party has been advised by counsel reasonably satisfactory shall be entitled to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and participate in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (cbut not control) the Indemnity Obligor has failed to assume the defense of such action action, with its counsel and employ counsel reasonably satisfactory to the Indemnified Party. Whether at its own expense (or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such recordscase of the Stockholders' Representative, information and testimony and shall attend such conferencesat the expense of the Stockholders). If the Indemnifying Party (or, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement the case 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 ClaimStockholders' Representative, the Indemnity Obligor shall be subrogated Stockholders) thereafter seeks to and shall stand question the manner in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against defended such third party relating 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 such indemnified matter. The Indemnified Party shall cooperate with prove by a preponderance of the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim evidence that would adversely affect the Indemnified Party without the consent of the Indemnified Partydid not defend or settle such third party claim in a reasonably prudent manner.

Defense. If The indemnifying party will be entitled to participate in, and to ------- the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against a third party available extent that it may elect by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice delivered to the Indemnified Party within 15 days following its receipt of indemnified party promptly after receiving the notice of such claimdescribed in Section 6.6, elect to assume the defense of any third party claim, action or the prosecution thereofsuit, including the employment of with counsel or accountants, reasonably satisfactory to such indemnified party; but, if the Indemnified Party, at its cost and 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 defendants in any such action include both the indemnified party and to participate therein, but the fees indemnifying party and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof indemnified party has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor concluded that there may be one or more legal defenses available to it which and/or other indemnified parties that are different from or additional to those available to the Indemnity Obligor indemnifying party, the indemnified party or parties will have the right to select separate counsel to assert such legal defenses and otherwise to participate in the reasonable judgment defense of such counsel it is advisable for action on behalf of such Indemnified Party indemnified party or parties. Upon receipt of notice from the indemnifying party to employ separate counsel, or (c) the Indemnity Obligor has failed such indemnified party of its election so to assume the defense of such action and employ 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 reasonably 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. Whether indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the suit, action or not proceeding or (c) the Indemnity Obligor chooses 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 defend in such clause (a) 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 trial as may be reasonably requested in connection therewith(c). The Indemnity Obligor shall indemnifying party will not be liable for agree to any settlement of a third party claim, action or suit that does not include a full release of any such claim effected 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, action or suit without its prior the indemnified party's written consent. In ; but the event of payment indemnified party will not unreasonably withhold its consent to any settlement solely for monetary damages to be paid 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 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 consent of the Indemnified Partyindemnifying party.

Defense. 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 LossExcept as otherwise provided herein, the Indemnity Obligor may, by giving written notice to the Indemnified Indemnifying Party within 15 days following its receipt of the notice of such claim, may elect to assume the defense compromise or the prosecution thereofdefend, including the employment of at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel or accountants, (which counsel shall be reasonably satisfactory to the Indemnified Party), at any Third Party Claim. 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, notify the Indemnified Party of its cost intent to do so, and expense; provided, however, that during the interim the Indemnified Party shall use 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 best efforts election to take all action do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (not including settlementi) reasonably necessary to protect the Indemnified Party may pay (without prejudice of any of its rights as against further damage the Indemnifying Party), compromise or loss with respect defend such Third Party Claim and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the Lossterms of this Agreement. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall have reasonably conclude, based upon the right to employ counsel separate from counsel employed by written advice of its counsel, that (x) there is a conflict of interest between the Indemnity Obligor Indemnifying Party and the 57 Indemnified Party in any such action and to participate therein, but the fees and expenses conduct of the defense of such counsel shall be at the Indemnified Party's own expense, unless Third Party Claim or (ay) 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 may be one or more legal are specific defenses available to it the Indemnified Party which are different from or additional to those available to the Indemnity Obligor Indemnifying Party and in which could be materially adverse to the reasonable judgment Indemnifying Party, then the Indemnified Party shall have the right to assume and direct the defense and compromise of such counsel it is advisable for Third Party Claim. In such an event, the Indemnifying Party shall indemnify the Indemnified Party for the fees and disbursements of counsel to employ separate counseleach of the Indemnifying Party and the Indemnified Party. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim (cunless the 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 Indemnity Obligor has failed objection of the other; PROVIDED, HOWEVER, that consent to assume settlement or compromise shall not be unreasonably withheld. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such action and employ counsel reasonably satisfactory to Third Party Claim. If the Indemnified Party. Whether or not the Indemnity Obligor Indemnifying Party chooses to defend or prosecute such any 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 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 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 anything to the contrary contained in connection this paragraph (b), in the event prompt action is required with any Loss arising out respect to the defense of a Third Party Claim, the Indemnity Obligor Indemnified Party shall, subject to the terms and conditions of this Article X, have the right to assume the defense of such Third Party Claim; PROVIDED, HOWEVER, 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 subrogated applicable and the Indemnifying Party shall, subject to the terms and shall stand in the place conditions of this Article X, indemnify the Indemnified Party as to for any events or circumstances in respect of which costs and expenses incurred by the Indemnified Party may have any right or claim against prior to the date the Indemnifying Party assumes control of such third party relating to such indemnified matter. The Indemnified Third 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 consent of the Indemnified PartyClaim.

Defense. If In the facts relating to a Loss arise out a event any Third Party Claimshall 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 covered by the indemnity under this Agreement, or if there is in the event that a potential Loss, damage or expense comes to the attention of any claim against a third party available Party in respect of matters embraced by virtue 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 circumstances of the Lossdemand, the Indemnity Obligor may, by giving claim or lawsuit. Within thirty (30) days after written notice to by the Indemnified Party within 15 days following its receipt of (the notice “Notice”) to an Indemnifying Party of such claimdemand, elect to assume claim or lawsuit, except as provided in the defense or next sentence, the prosecution thereof, including Indemnifying Party shall have the employment of counsel or accountants, reasonably satisfactory to the Indemnified Partyoption, at its sole cost and expense, to retain counsel to defend any such demand, claim or lawsuit; providedprovided that counsel who will conduct the defense of such demand, however, that during the interim claim or lawsuit will be approved by the Indemnified Party shall use its best efforts to take all action (whose approval will not including settlement) reasonably necessary to protect against further damage or loss with respect to the Lossunreasonably be withheld. The Indemnified Party shall have the right right, at its own expense, to employ counsel separate from counsel employed by participate in the Indemnity Obligor in defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, if (i) the named parties to any such action proceeding (including any interpleaded parties) include both the Indemnifying Party and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless 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 retained separate counsel for the Indemnified Party, (aii) the employment thereof has been specifically authorized of counsel by the Indemnity Obligor, (b) 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 demand, 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 reasonably satisfactory to the Indemnity Obligor chosen by it that there may be one or more legal defenses available to it such Indemnified Party which are different from or additional in addition to those available which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the Indemnity Obligor and in election of the reasonable judgment of such counsel it is advisable for such Indemnified Party, the Indemnifying Party will not have the right to employ separate counsel, or (c) the Indemnity Obligor has failed to assume continue the defense of such action demand, claim or lawsuit on behalf of such Indemnified Party and employ will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel reasonably satisfactory to retained by the Indemnified Party. Whether or not Party to undertake the Indemnity Obligor chooses 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 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 consentdefense. In the event of payment by that the Indemnity Obligor Indemnifying Party shall fail 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 respond within thirty (30) days after receipt of the Indemnified Party as to any events or circumstances in respect of which Notice, the Indemnified Party may have any right retain counsel and conduct the defense of such demand, claim or claim against lawsuit, as it may in its sole discretion deem proper, 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. Failure to provide Notice shall not limit the rights of such third party relating to indemnification, except to the extent the Indemnifying Party’s defense of the action is actually prejudiced by such indemnified matterfailure. 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 consent assumption of the Indemnified Partydefense or the non-assumption of the defense, by the purported Indemnifying Party will not affect such party’s right to dispute its obligation to provide indemnification hereunder.

Defense. 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 written notice to the Indemnified Party 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 counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and 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 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 may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to 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, 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 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 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 may give rise to indemnity under this Agreement resulting from or arising out of any claim or legal proceeding by a person other than the Indemnitee, the Indemnitor, may, upon written notice to the Indemnitee, assume the defense of any such claim or legal proceeding with counsel reasonably acceptable to the Indemnitee (confirmation of which not to be unreasonably delayed), provided that (i) the Indemnitor may only assume control of such defense if (A) it acknowledges in writing to the Indemnitee that any damages, fines, costs or other liabilities that may be assessed against the Indemnitee in connection with such third party claim constitute Losses for which the Indemnitee shall be indemnified pursuant to this Section 6 or Section 7.2, (B) 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 then remaining unused portion of the Cap (as defined in Section 6.6(b)), and (C) in the case of a claim against a Buyer Indemnitee, an adverse resolution of the third party claim would adversely affect not have a material adverse effect on the Indemnified goodwill or reputation of the Buyer or the business, operations or conduct of the Surviving Corporation and (ii) the Indemnitor may not assume control of the defense of any third party claim involving Taxes or criminal liability or in which equitable relief is sought against the Indemnitee. If the Indemnitor does not, or is not permitted under the terms hereof to, so assume control of the defense of a third party claim, the Indemnitee shall control such defense. The party not controlling such defense (the “Non-controlling Party”) may participate in such defense at its own expense. The party controlling such defense (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 Non-controlling Party shall furnish the Controlling Party with such information as it may have with respect to such third party claim (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such third party claim. The fees and expenses of counsel to the Indemnitee with respect to a third party claim shall be considered Losses for purposes of this Agreement if (i) the Indemnitee controls the defense of such third party claim pursuant to the terms of this Section 6.5 or (ii) the Indemnitor assumes control of such defense and the Indemnitee and the Indemnitor have conflicting interests or different defenses available with respect to such third party claim. Neither the Securityholders’ Representative nor any Securityholder shall agree to any settlement of, or the entry of any judgment arising from, any third party claim without the prior written consent of the Buyer, provided that the consent of the Indemnified PartyBuyer shall not be required if the Securityholders’ Representative agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the Buyer Indemnitees from further liability and has no other adverse effect on the Buyer. Except as provided in Section 6.5(b), the Buyer shall not agree to any settlement of, or the entry of any judgment arising from, any such third party claim without the prior written consent of the Securityholders’ Representative, which shall not be unreasonably withheld, conditioned or delayed. (b) Notwithstanding the other provisions of this Section 6.5, if a customer or supplier of the Company or CMS asserts (other than by means of a lawsuit) that a Buyer Indemnitee is liable to such third party for a monetary or other obligation which may constitute or result in Losses for which a Buyer Indemnitee may be entitled to indemnification pursuant to this Section 6 or Section 7.2, and the Buyer reasonably determines that it has a valid business reason to fulfill such obligation, then (i) the Buyer shall be entitled to satisfy such obligation, up to a maximum amount of $500,000, without prior notice to or consent from the Securityholders’ Representative, (ii) the Buyer may subsequently make a claim for indemnification in accordance with the provisions of this Section 6, and (iii) the Buyer shall be reimbursed, in accordance with the provisions of this Section 6, for any such Losses for which it is entitled to indemnification pursuant to this Section 6 or Section 7.2 (subject to the right of the Securityholders’ Representative to dispute the Buyer’s entitlement to indemnification, or the amount for which it is entitled to indemnification, under the terms of this Section 6).

Defense. If (i) In the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against case of a third party available by virtue of the circumstances of the Lossclaim, the Indemnity Obligor mayIndemnifying Party may participate in the defense thereof and, by giving written notice if it so chooses and irrevocably acknowledges its obligation to indemnify the Indemnified Party within 15 days following its receipt of the notice of such claimtherefor, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and 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 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 may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume control the defense of such action and employ an Indemnifiable Claim with counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim; provided, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such recordshowever, 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 that if the Indemnified Party in connection reasonably believes that (x) a material conflict of interest between the Indemnified Party and the Indemnifying Party with any Loss arising out respect to the claim or its defense exists or is likely to develop during the pendency of the litigation, and as a Third Party Claimresult of such conflict, the Indemnity Obligor shall Indemnifying Party’s incentive to defend such claim could reasonably be subrogated expected to and shall stand in be materially compromised, or (y) the place 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 to any events or circumstances in respect such (which issues are a fundamental element of which 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 have any right or claim against such 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 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 irrevocably 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, 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 such indemnified matterRemediation 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 shall cooperate with not settle or compromise a third party claim for which it is entitled to indemnification hereunder without the Indemnity Obligor in prosecuting prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of any subrogated claim. The Indemnity Obligor will take no action in connection with any third party claim that would adversely affect 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 not be unreasonably withheld, conditioned or delayed). The Indemnified Party shall conduct the defense in good faith and in a commercially reasonable manner, 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 subject to the consent of the Indemnified Indemnifying Party, such consent not to be unreasonably withheld or delayed. The Indemnifying Party may participate in the defense thereof, at its own expense. If, in order to preserve existing insurance for a claim against IPC currently maintained by Dynegy, it is necessary to permit Dynegy’s insurer to conduct the defense of IPC, Purchaser will consider in good faith waiving or sharing its right to control such defense so that Dynegy’s insurance rights are not lost, subject to the 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. (i) If a Third Party Claim is made against an Indemnified Party, then the Indemnifying Party shall be entitled to participate in the defense of the Third Party Claim (with counsel of its own choosing) and, if both the amount that the plaintiff or claimant is seeking under such Third Party Claim is less than the then outstanding indemnification obligation of the Indemnifying Party pursuant to the terms of this Agreement (without taking into account court costs and reasonable fees and expenses of attorneys and expert witnesses) and the Indemnifying Party so chooses within 30 days of delivery of notice thereof, to assume the defense of such Third Party Claim. (ii) If the facts relating Indemnifying Party elects to assume the defense of a Loss arise out a Third Party Claim as set forth in Section 8.4(b)(i), then (A) the Indemnifying Party shall defend such Third Party Claim actively and in good faith, (B) the Indemnifying Party shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense of such Third Party Claim, or if there is any claim against a third party available by virtue of (C) the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party 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 counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and 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 participate in the defense of such Third Party Claim and to employ counsel counsel, at its own expense, separate from the counsel employed by the Indemnity Obligor Indemnifying Party, it being understood, however, that the Indemnifying Party shall control such defense, and (D) the Parties shall cooperate in the defense of such Third Party Claim, with such cooperation including 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; however, that neither the Indemnified Party nor the Indemnifying Party shall be required to disclose any privileged information or any attorney work-product in connection with the defense of any such action and asserted Third Party Claim unless such disclosure is made pursuant to participate therein, but a joint defense agreement reasonably acceptable to both parties. (iii) If 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 Indemnifying Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed right to assume the defense of a Third Party Claim under Section 8.4(b)(i) and, within the time period set forth in Section 8.4(b)(i), does not assume defense of such action Third Party Claim or if the Indemnifying Party does not have the right to assume the defense of a Third Party Claim under Section 8.4(b)(i), then (A) the Indemnified Party shall defend such Third Party Claim actively and in good faith, (B) the Indemnifying Party shall have the right to participate in the defense of such Third Party Claim and to employ counsel, at its own expense, separate from the counsel reasonably satisfactory to employed by the Indemnified Party. Whether or not , it being understood, however, that the Indemnity Obligor chooses to defend or prosecute Indemnified Party shall control such claim, all defense and (C) the parties hereto Parties shall cooperate in the defense or prosecution thereof of such Third Party Claim, with such cooperation including the retention and shall furnish such records, 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 (upon the event of payment by Indemnified Party’s request) the Indemnity Obligor provision to the Indemnified 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, however, that neither the Indemnified Party nor the Indemnifying Party shall be required to disclose any privileged information or any attorney work-product in connection with the defense of any Loss arising out of a such asserted Third Party ClaimClaim unless such disclosure is made pursuant to a joint defense agreement reasonably acceptable to both parties. (iv) Notwithstanding anything to the contrary in this Section 8.4(b), neither the Indemnity Obligor shall be subrogated to and shall stand in the place of Indemnifying Party nor the Indemnified Party as shall settle, or consent to the entry of judgment with respect to, any events or circumstances in respect of which the Indemnified Third 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. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party Claim without the prior written consent of the Indemnified Partyother (which consent shall not be unreasonably withheld, conditioned or delayed).

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there Claim is any claim made against a third party available by virtue of the circumstances of the LossIndemnified Party, the Indemnity Obligor mayIndemnifying Party shall be entitled to participate in the defense thereof and, by giving written notice to if the Indemnified Indemnifying Party within 15 days following its receipt of the notice of such claimso chooses, elect to assume the defense or thereof with counsel selected by the prosecution thereof, including the employment of counsel or accountants, Indemnifying Party and reasonably satisfactory to the Indemnified Party. Should the Indemnifying Party so elect to assume and thereafter actively and in good faith defend the defense of a Third Party Claim, at its cost and expense; provided, however, that during the interim Indemnifying Party shall not be liable to the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss for legal expenses subsequently incurred by the Indemnified Party in connection with respect to the Lossdefense thereof. The 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 counsel, at its own expense, separate from the counsel employed by the Indemnity Obligor in any Indemnifying Party, it being understood, however, that the Indemnifying Party shall control such action and to participate therein, but defense. The Indemnifying Party shall be liable for the fees and expenses of such counsel shall be at employed by the Indemnified Party's own expense, unless (a) Party for any period during which the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Indemnifying Party has been advised by counsel reasonably satisfactory to not assumed the Indemnity Obligor that there may be one defense thereof or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor actively and in good faith defend such Third Party Claim. If the reasonable judgment of such counsel it is advisable for such Indemnified Indemnifying Party to employ separate counsel, or (c) the Indemnity Obligor has failed to 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 claimany Third Party Claim, all the parties hereto shall cooperate in the defense or prosecution thereof of such Third Party Claim. Such cooperation shall include the retention and shall furnish (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of Records that are reasonably relevant to such recordsThird Party Claim, and making employees available on a mutually convenient basis to provide additional 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 explanation of any such claim effected without its prior written consentmaterial provided hereunder. In If the Indemnifying Party, within a reasonable time after receipt of an Indemnification Notice relating to a Third Party Claim (but in no event of payment by the Indemnity Obligor more than five (5) business days), chooses not to the Indemnified Party in connection with any Loss arising out assume defense of a Third Party ClaimClaim or fails to defend such Third Party Claim actively and in good faith, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as shall (upon further notice) have the right to any events undertake the defense, compromise or circumstances in settlement of such Third Party Claim or consent to the entry of judgment with respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Third Party Claim on behalf of, and for the account and risk of, the Indemnifying Party, and the Indemnifying Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take have no action in connection with any claim that would adversely affect the Indemnified Party without the consent of right to challenge the Indemnified Party’s defense, compromise, settlement or consent to judgment.

Defense. 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 LossExcept as otherwise provided herein, the Indemnity Obligor may, by giving written notice to the Indemnified Indemnifying Party within 15 days following its receipt of the notice of such claim, may elect to assume the defense compromise or the prosecution thereofdefend, including the employment of at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel or accountants, (which counsel shall be reasonably satisfactory to the Indemnified Party), at any Third Party Claim. 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, notify the Indemnified Party of its cost intent to do so, and expense; provided, however, that during the interim the Indemnified Party shall use 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 best efforts election to take all action do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (not including settlementi) reasonably necessary to protect the Indemnified Party may pay (without prejudice of any of its rights as against further damage the Indemnifying Party), compromise or loss with respect defend such Third Party Claim and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the Lossterms of this Agreement. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall have reasonably conclude, based upon the right to employ counsel separate from counsel employed by written advice of its counsel, that (x) there is a conflict of interest between the Indemnity Obligor Indemnifying Party and the Indemnified Party in any such action and to participate therein, but the fees and expenses conduct of the defense of such counsel shall be at the Indemnified Party's own expenseThird Party Claim, unless or (ay) 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 may be one or more legal are specific defenses available to it the Indemnified Party which are different from or additional to those available to the Indemnity Obligor Indemnifying Party and in 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 Indemnifying Party shall pay the reasonable judgment fees and disbursements of such counsel it is advisable for such to the Indemnifying Party or Parties and the Indemnified Party to employ separate counsel, or (c) provided that the Indemnity Obligor has failed to 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, 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 trial as may be reasonably requested in connection therewith. The Indemnity Obligor Indemnifying Party shall not be liable for any settlement the fees and expenses of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to more than one counsel for the Indemnified Parties other than local counsel. Notwithstanding the foregoing, neither the Indemnifying 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 nor the Indemnified Party may have settle or compromise any right or claim against such (unless the sole relief payable to a third party relating 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 indemnified matterclaim, 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. The In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such Third Party Claim. If the Indemnifying Party chooses to defend any claim, the Indemnified Party shall cooperate with make available to the Indemnity Obligor in prosecuting Indemnifying Party any subrogated claim. The Indemnity Obligor will take no action in connection with personnel or any claim books, records or other documents within its control that would adversely affect are reasonably necessary or appropriate for such defense, subject to the Indemnified Party without the consent receipt of the Indemnified Partyappropriate confidentiality agreements.

Defense. If The Indemnifying Party shall have the facts relating right to a Loss arise out a Third Party Claimdirect, or if there is any claim against a third party available by virtue through counsel of the circumstances of the Lossits own choosing, the Indemnity Obligor may, by giving written notice to defense or settlement of any action or proceeding brought against the Indemnified Party within 15 days following its receipt in respect of the notice of such claim, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expenseThird Party Claims; provided, however, that during the interim Indemnifying Party 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 shall use or, regardless of the terms of such settlement, if the Indemnifying Party disputes its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss liability with respect to the LossThird Party Claim. The If the Indemnifying Party elects to assume the defense of any such claim or proceeding, the Indemnified Party may participate in such defense at its own expense. If the Indemnifying Party fails to 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 shall have the right to employ direct, at the Indemnifying Party's sole cost and expense, through counsel separate from counsel employed by of its own choosing, the Indemnity Obligor in defense or settlement of any such action 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 right to participate thereinin 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 foregoing provisions of this Section 10.3(b), but if the fees Indemnifying Party disputes its liability to the Indemnified Party 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 be required to bear the costs and expenses of such counsel shall be at the Indemnified Party's own expensedefense pursuant to this Section 10.3(b), unless (a) and the employment thereof has been specifically authorized indemnified Party shall reimburse the Indemnifying Party in full for all costs and expenses incurred by the Indemnity Obligor, (b) Indemnifying Party in connection with such Indemnified Third Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume Claim. The party directing the defense of shall pursue such action defense diligently and employ counsel reasonably satisfactory to the Indemnified Partypromptly. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the 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 trial as may be reasonably requested in of all Third Party Claims. In connection therewith. The Indemnity Obligor shall not be liable for any settlement with the defense 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, each party shall make available to the Indemnity Obligor shall be subrogated to and shall stand party controlling such defense any books, records or other documents within its control that are reasonably requested in the place course of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right necessary or claim against appropriate for 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 consent of the Indemnified Partydefense.

Defense. If a Third-Party Claim is made against the facts relating Indemnified Party, then the Indemnifying Party shall be entitled to a Loss arise out a Third participate in the defense thereof and, if the Indemnifying Party Claimso chooses, 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 written notice to assume (subject to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect to assume limitations set forth below) the defense or thereof with counsel selected by the prosecution thereof, including the employment of counsel or accountants, Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that, at the Indemnifying Party shall 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 cost 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 expenseexpenses of counsel subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, that during (i) prior to assuming the interim 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 use its best efforts not signify any agreement, obligation or commitment on the part of the Indemnifying Party to take all action assume or pay any amount awarded to a claimant in respect of such Third-Party Claim. If the Indemnifying Party assumes (not including settlement) reasonably necessary to protect against further damage or loss with respect subject to the Loss. The limitations set forth above) such defense, then the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel counsel, at its own expense, separate 6629923v2 from the counsel employed by the Indemnity Obligor in any Indemnifying Party, it being understood, however, that the Indemnifying Party shall control such action and to participate therein, but defense. If the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless Indemnifying Party chooses (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory subject to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (climitations set forth above) the Indemnity Obligor has failed to 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 claimany Third-Party Claim, all then the parties hereto Parties shall cooperate in the defense or prosecution thereof of such Third-Party Claim. Such cooperation shall include the retention and shall furnish (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records that are reasonably relevant to such recordsThird-Party Claim, and making employees available on a mutually convenient basis to provide additional 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 explanation of any material provided hereunder. If the 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 claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to Third-Party Claim actively and in good faith, then the Indemnified Party in connection shall (upon further written notice) have the right to defend and, subject to Section 6.5, compromise or settle such Third-Party Claim or consent to the entry of judgment with any Loss arising out of a Third respect to such Third-Party Claim, in each case at the Indemnity Obligor shall be subrogated to cost and shall stand in the place expense of the Indemnified Party 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. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Indemnifying Party.

Defense. If the facts relating pertaining to a Loss an indemnification loss arise out a Third Party Claim, or if there is any of the claim against 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 virtue of the circumstances of the Lossindemnification loss, the Indemnity Obligor mayIndemnifying Party has the right, to be exercised by giving delivering written notice to the Indemnified Party within 15 thirty (30) days following its of receipt of the notice of such claima Required Notice, elect to assume and control the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory at its own expense. The assumption of the defense of an indemnification claim by the Indemnifying Party shall not be construed as an acknowledgement that the Indemnifying Party is liable to indemnify the Indemnified Party in respect of such indemnification claim, nor shall it constitute a waiver by the Indemnifying Party of any defenses it may assert against the Indemnified Party’s claim for indemnification If the Indemnifying Party assumes the defense of any third party claim or litigation, the obligations of the Indemnifying Party under this Agreement shall 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 harmless from and against any and all losses caused by or arising out of any settlement approved by the 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, at its cost and 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 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 borne by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor Indemnifying Party chooses to so defend or prosecute any such indemnification claim, all the parties hereto shall cooperate in good faith and in a reasonable manner in the defense or prosecution thereof and shall furnish such records, information materials, information, witnesses and testimony testimony, and shall attend such conferences, discovery proceedings proceedings, hearings, trials and trial appeals, 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 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 consent of the Indemnified Party.

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there Claim is any claim made against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party, then the Indemnifying Party within 15 days following its receipt of shall be entitled to participate in the notice of such claimdefense thereof and, elect if the Indemnifying Party so chooses, to assume the defense or thereof with counsel selected by the prosecution thereof, including the employment of counsel or accountants, Indemnifying Party and reasonably satisfactory to 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 not assumed the defense thereof. If the Indemnifying Party so elects to assume the defense of a Third Party Claim, at its cost then the Indemnifying Party shall not be liable to the Indemnified Party for the reasonable fees and expenseexpenses of counsel subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, that during (i) prior to assuming the interim 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 use its best efforts not signify any agreement, obligation or commitment on the part of the Indemnifying Party to take all action (not including settlement) reasonably necessary assume or pay any amount awarded to protect against further damage or loss with a claimant in respect to of such Third Party Claim. If the Loss. The Indemnifying Party assumes such defense, then the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel counsel, at its own expense, separate from the counsel employed by the Indemnity Obligor in any Indemnifying Party, it being understood, however, that the Indemnifying Party shall control such action and to participate therein, but defense. If 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 Indemnifying Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to 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 claimany Third Party Claim, all then the parties hereto Parties shall cooperate in the defense or prosecution thereof of such Third Party Claim. Such cooperation shall include the retention and shall furnish (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records that are reasonably relevant to such recordsThird Party Claim, and making employees available on a mutually convenient basis to provide additional 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 explanation of any such claim effected without its prior written consentmaterial provided hereunder. In If the event Indemnifying Party, within a reasonable time after receipt of payment by the Indemnity Obligor an Indemnification Notice relating to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated chooses not to assume defense of a Third Party Claim or fails to defend such Third Party Claim actively and shall stand in the place of good faith, then the Indemnified Party as shall (upon further notice) have the right to any events defend, compromise or circumstances in settle of such Third Party Claim or consent to the entry of judgment with respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Third 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 consent of the Indemnified PartyClaim.

Defense. 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 mayshall, by giving written notice to the Indemnified Party 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 counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and 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 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 may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in counsel to each of the reasonable judgment of such counsel it is advisable for such Indemnified Party and the Indemnity Obligor shall have advised such parties that representation of both parties by the same counsel would be inappropriate due to employ separate counsel, actual or potential differing interests between them or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Partyaction. Whether or not the Indemnity Obligor chooses to defend defends or prosecute prosecutes 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 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 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 consent of the Indemnified Party.

Defense. If The party to provide indemnification (the facts relating “Indemnifying Party”) shall (subject to a Loss arise out a Third Party Claimthe limitations set forth in subsection 7.2(c) below and subject to the following sentence), or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor mayat its own expense, by giving written notice to the Indemnified Party within 15 days following its receipt Party, assume the entire control of, subject to the right of the notice Indemnified Party to participate (at its expense and with counsel of its choice) in, the defense of the Third Party Claim as to which such Notice of Claim has been given. All expenses, fees, and costs associated with the defense of such claim, elect Third Party Claim by the Representative on behalf of the Stockholders as Indemnifying Party shall be first paid from the Escrowed Cash and then (should such amount be fully extinguished) from the proceeds from the sale of the Escrowed Shares. If the Indemnifying Party is permitted to assume the defense or of a Third Party Claim: (i) the prosecution thereof, including Indemnifying Party shall diligently and in good faith defend such Third Party Claim and shall keep Indemnifying Party reasonably informed of the employment status of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expensesuch defense; provided, however, that during in the interim case of any settlement providing for remedies other than monetary damages for which indemnification is provided, 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 Indemnifying Party shall have the right to employ counsel separate from counsel employed by approve the Indemnity Obligor settlement, which approval will not be unreasonably withheld, conditioned, or delayed; (ii) Indemnified Party shall cooperate fully in all respects with the Indemnifying Party in any such action and to participate thereindefense, but compromise or settlement thereof, including, without limitation, the fees and expenses selection of such counsel (which 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 may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory acceptable to the Indemnified Party. Whether ), and Indemnified Party shall make available to the Indemnifying Party all pertinent information and documents under its control; and (iii) for purposes of clarification, to the extent that Stockholders are required to act as an Indemnifying Party pursuant to this Article VII, at such time after the Escrowed Cash is fully exhausted, the Representative shall be entitled on their behalf, without reference to and regardless of any lock ups or not restrictions that would otherwise be applicable to the Indemnity Obligor chooses Escrowed Shares (and subject to defend applicable securities laws), to sell or prosecute pledge such claim, all Escrowed Shares at any time during the parties hereto shall cooperate Escrow Period to assist in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewithof and/or to pay any Losses. The Indemnity Obligor shall not be liable for any settlement parties agree to take all steps necessary, including execution of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor subsequent documentation, in order to the Indemnified Party enable Representative to act in connection accordance 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 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 consent of the Indemnified Partythis Article VII.

Defense. If the facts relating any Indemnified Party learns of any matter which may give rise to a Loss arise out a Third claim for indemnification against an Indemnifying Party Claimunder this Article XI, 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 written notice to then the Indemnified Party shall notify the Indemnifying Party thereof promptly and in any event within 15 days following its receipt five (5) Business Days after receiving any written notice from a third party; provided, however, that no delay on the part of the Indemnified Party 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 such claimthe matter to the Indemnifying Party, elect the Indemnified Party may, subject to the Indemnifying Party's rights to assume the defense or the prosecution thereof, including defend against the employment matter in any manner it reasonably may deem appropriate. In the event the Indemnifying Party notifies the Indemnified Party (after the date the Indemnified Party has given notice of the matter) that the Indemnifying Party is assuming the defense of such matter, the Indemnifying Party shall defend the Indemnified Party against the matter with counsel or accountants, of its choice reasonably satisfactory to the Indemnified Party. Notwithstanding the foregoing, at its cost and 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 its own counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate thereincase, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party's own expense, Party unless (ai) the employment thereof has of such counsel shall have been specifically authorized in writing by the Indemnity ObligorIndemnifying Party, (bii) the Indemnifying Party shall not have employed counsel to fully and properly take charge of the defense of such action within a reasonable time after notice of commencement of the action or (iii) the Indemnified Party has been advised by counsel shall have reasonably satisfactory to the Indemnity Obligor concluded that there may be one or more legal are defenses available to it which that are different from or additional to those available to one or more of the Indemnity Obligor and Indemnifying Parties (in which case the reasonable judgment of such counsel it is advisable for such Indemnified Party Indemnifying Parties shall not have the right to employ separate counsel, or (c) the Indemnity Obligor has failed to assume direct 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, 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 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 on behalf of the Indemnified Party as with respect to such different defenses), in any events or circumstances in respect of which events such fees and expenses shall be borne by the Indemnified Indemnifying Party. Assumption of the defense of any matter by the Indemnifying Party may have any shall not prejudice the right or of the Indemnifying Party to claim against at a later date that such third party relating action is not a proper matter for indemnification pursuant to such indemnified matterthis Article XI. The Indemnified Party shall cooperate not consent to the entry of a judgment or enter into any settlement with respect to any matter which may give rise to a claim for indemnification without the Indemnity Obligor in prosecuting any subrogated claimwritten consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. The Indemnity Obligor will take no action 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 connection with any claim that would adversely affect the matter releases the Indemnified Party from all Damages with respect thereto, without the written consent of the Indemnified PartyParty (not to be unreasonably withheld or delayed).

Defense. If In the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against case of a third party available by virtue of the circumstances of the Lossclaim, the Indemnity Obligor mayIndemnifying Party may participate in the defense thereof and, by giving written notice if it so chooses and acknowledges its obligation to indemnify the Indemnified Party within 15 days following its receipt of the notice of such claimtherefore, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and 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 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 may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume control the defense of such action and employ an Indemnifiable Claim with counsel reasonably satisfactory to the Indemnified Party. Whether or not In all cases, the Indemnity Obligor chooses party without the right to defend or prosecute such claim, all control the parties hereto shall cooperate defense of the Indemnifiable Claim may participate in the defense or prosecution thereof at its own expense. In the case of a third party claim, the Indemnifying Party shall inform the Indemnified Party within 14 days of receiving the written notice seeking indemnification whether the party elects to control the defense and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewithacknowledges 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 Obligor 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, which consent shall not be liable for any settlement of any unreasonably withheld or delayed; provided that such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor 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 Indemnified Party in connection with any Loss arising out terms 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 have any right or claim against such third party relating to such indemnified matterSection 5.18. The Indemnified Party shall cooperate with not settle or compromise a third party claim for which it is entitled to indemnification hereunder without the Indemnity Obligor in prosecuting prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of any subrogated claim. The Indemnity Obligor will take no action in connection with any third party claim that would adversely affect or litigation resulting therefrom within 14 days after the date it receives notice of such claim from the Indemnified Party, the Indemnified Party without 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 consent 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 Indemnified Partylimitations 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 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 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 pursuant to the Joint Defense and Common Interest Agreement dated as of October 8, 2003, as amended, between Dynegy and Exelon.

Defense. If An Indemnifying Party will have the facts relating right to a Loss arise out a Third control the defense and financial settlement of any Losses for which it is providing indemnification hereunder, including the selection of legal counsel, except that the Indemnifying Party Claim, must not agree to any non-financial settlement or if there is term of settlement (including but not limited to any claim against a third party available by virtue acknowledgement of liability or responsibility) of any Losses without the prior consent of the circumstances relevant Indemnified Party(ies). The Indemnified Party(ies) will, at the Indemnifying Party’s sole cost and expense, cooperate with the Indemnifying Party as reasonably requested in the defense of the LossLosses, including but not limited to making relevant representatives and documents available to the Indemnity Obligor mayIndemnifying Party. Nothing herein prevents an Indemnified Party, by giving written notice prior to the resolution of any Losses, from retaining its own legal counsel for the purpose of assuming control of the Indemnified Party’s defense; however, the Indemnified Party within 15 days following must immediately notify the Indemnifying Party in writing of its receipt assumption of the notice defense, and its assumption thereof will relieve the Indemnifying Party of such claim, elect to assume the any further indemnification and defense or the prosecution thereof, including the employment obligations on behalf of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts hereunder as of the date of such notice. Notwithstanding anything to take all action (not including settlement) reasonably necessary to protect against further damage or loss the contrary in this Section 3.2, with respect to an Indemnified Party that is a Federal Institution, the Loss. The Indemnified Indemnifying Party shall have the right to employ counsel separate from counsel employed control the defense and financial settlement of Losses, including the selection of legal counsel, as provided herein, except to the extent that a third party is required by the Indemnity Obligor in any such action and law to participate therein, but the fees and expenses of such counsel shall be at defend the Indemnified Party's own expense, unless (a) which requirement may limit or preclude the employment thereof has been specifically authorized by the Indemnity ObligorIndemnifying Party’s obligation to defend, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it but which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to 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, 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 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 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 consent of the Indemnified Indemnifying Party’s obligations to indemnify and hold harmless hereunder.

Defense. If The Indemnified Party intending to claim indemnification under this ARTICLE VIII shall promptly notify the facts relating to a Indemnifying Party of any Action or Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue in respect of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to which the Indemnified Party within 15 days following its receipt of intends to claim such indemnification, and the notice of such claim, elect Indemnifying Party shall be entitled to assume and control the defense thereof (with counsel selected by the Indemnifying Party) whether or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expensenot such Action is rightfully brought; 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 an Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate thereinretain its own counsel, but with the fees and expenses of such counsel shall to be at paid by the Indemnified Party's own expense, unless (a) Indemnifying Party does not assume the employment thereof has been specifically authorized defense, in which case the reasonable fees and expenses of counsel retained by the Indemnity Obligor, (b) such Indemnified Party has been advised shall be paid by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more Indemnifying Party. The Indemnified Party, and its employees and agents, shall cooperate fully with the Indemnifying Party and its legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and representatives in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the investigation and defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether any Action or not the Indemnity Obligor chooses 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 trial as may be reasonably requested in connection therewithLoss. The Indemnity Obligor Indemnifying Party shall not be liable for the indemnification of any settlement Action or Loss settled (or 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 any such claim effected without its Action, the Indemnifying Party shall have the right to settle such Action; provided, that the Indemnifying Party shall obtain the 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 consent (which shall not be subrogated to and shall stand in the place unreasonably withheld or delayed) of the Indemnified Party as 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 events violation of law or circumstances in respect any violation of which the rights of any Person by an Indemnified Party, no requirement that the Indemnified Party admit fault or culpability, and no adverse effect on any other claims that may have any right be made by 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 and (B) the consent of sole relief provided is monetary damages that are paid in full by the Indemnifying Party or its insurer and such settlement does not require the Indemnified PartyParty to take (or refrain from taking) any action.

Defense. (a) If the facts relating pertaining to a Loss arise out a Third Party Claimof the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor mayIndemnifying Party shall have the right to participate in, or by giving written notice to the Indemnified Party within 15 days following its receipt of the notice of such claimParty, to elect to assume the defense of, or the prosecution thereoftake full responsibility for, such audit, investigation, action, claim or proceeding, including the employment of counsel or accountants, in each case reasonably satisfactory to the Indemnified Party, at its cost and 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 to participate therein, but payment of the fees and expenses disbursements of such counsel shall be at counsel. If the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Indemnifying Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one declines or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed fails to assume the defense of such action and of, or take full responsibility for, the audit, investigation, action, claim or proceeding on the terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within ten (10) Business Days following receipt by the Indemnifying Party of notice of the claim, then the Indemnified Party may employ counsel to represent or defend it in any such audit, investigation, action, claim or proceeding and the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred. In any audit, investigation, action, claim or proceeding for which the Indemnifying Party has assumed the defense, the Indemnified Party shall have the right to participate in such matter and to retain its own counsel at the Indemnified Party's own expense (except that the Indemnifying Party shall be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest). The Indemnifying Party shall at all times use reasonable efforts to inform the Indemnified Party of the status of the defense of any matter the defense of which the Indemnifying Party has assumed and to cooperate in good faith with the Indemnified Party with respect to the defense of any such matter. (b) No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent, which shall not be unreasonably delayed or withheld, of the Indemnifying Party. No Indemnifying Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent, which shall not be unreasonably delayed or withheld, of the Indemnified Party, unless such settlement, compromise or consent (A) includes an unconditional release of the Indemnified Party and its officers, directors, employees and Affiliates from all liability arising out of such claim, and (B) does not impose an injunction or other equitable relief upon the Indemnified Party. (c) Whether or not the Indemnity Obligor Indemnifying Party chooses to defend or prosecute such a claim, all the parties hereto Parties shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony testimony, and shall attend such conferences, discovery proceedings proceedings, hearings, trials and trial appeals, 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 Indemnifying Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to all rights and shall stand in the place of the Indemnified Party 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. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent remedies of the Indemnified Party.

Defense. If the facts relating (i) Within thirty (30) days after delivery of an Indemnification Notice with respect 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 Indemnifying Party may, by giving upon written notice thereof to the Indemnified Party within 15 days following its receipt Party, assume control of the notice defense of such claim, elect to assume the defense or the prosecution thereof, including the employment of Third Party Claim with counsel or accountants, reasonably satisfactory to the Indemnified Party; provided that (A) the Indemnifying Party 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 cost and expense; providedown expense (except to the extent otherwise contemplated by the preceding sentence), it being understood, however, that during the interim 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 shall use and its best efforts to take all action Affiliates from further Liability, (not including settlement3) reasonably necessary to protect against further damage involves no admission of wrongdoing by the Indemnified Party or loss with respect any of its Affiliates and (4) excludes any injunctive or non-monetary relief applicable to the LossIndemnified Party or any of its Affiliates or (B) the Indemnified Party consents thereto. The If the Indemnifying Party is not permitted to under the terms of this Agreement, chooses not to, or does not, assume the defense of a Third Party Claim or fails to defend such Third Party Claim actively and in good faith, then the Indemnified Party shall have the right to employ counsel separate from counsel employed by defend, compromise or settle such Third Party Claim or consent to the Indemnity Obligor in any entry of judgment with respect to such action and to participate therein, but the fees and expenses of such counsel shall be Third Party Claim at the Indemnified expense of the Indemnifying Party's own expense; provided, unless (a) however, the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory shall not compromise or settle such Third Party Claim or consent to the Indemnity Obligor that there may be one or more legal defenses available entry of judgment with respect to it such Third Party Claim without the prior written consent of the Indemnifying Party, which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to 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, 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 trial as may be reasonably requested in connection therewith. The Indemnity Obligor consent 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 Claimunreasonably withheld, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events conditioned 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. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Partydelayed.

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there Claim is any claim made against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party, then the Indemnifying Party within 15 days following its receipt of shall be entitled to participate in the notice of such claimdefense thereof and, elect if the Indemnifying Party so chooses, to assume the defense or thereof with counsel selected by the prosecution thereof, including the employment of counsel or accountants, Indemnifying Party and reasonably satisfactory to the Indemnified Party, at its cost . The Indemnifying Party shall be liable for the reasonable fees and expense; provided, however, that during the interim expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof. If the Indemnifying Party so elects to assume the defense of a Third Party Claim, then the Indemnifying Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect be liable to the LossIndemnified Party for the reasonable fees and expenses of counsel subsequently incurred by the Indemnified Party in connection with the defense thereof. The 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 counsel, at its own expense, separate from the counsel employed by the Indemnity Obligor in any Indemnifying Party, it being understood, however, that the Indemnifying Party shall control such action defense and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) Party shall pay 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 may be one expense of his or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ its separate counsel, or (c) . If the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor Indemnifying Party chooses to defend or prosecute such claimany Third Party Claim, all then the parties hereto Parties shall cooperate in the defense or prosecution thereof of crossclaims or counterclaims relating to such Third Party Claim. Such cooperation shall include, without limitation, the retention, and shall furnish (upon the Indemnifying Party’s request) the provision to the Indemnifying Party, of records that are reasonably relevant to such recordsThird Party Claim, 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 making employees 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 available on a mutually convenient basis to provide additional information and explanation of any Loss arising out 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, the Indemnity Obligor shall be subrogated chooses not to assume defense of a Third Party Claim or fails to defend such Third Party Claim actively and shall stand in the place of good faith, then the Indemnified Party as shall (upon further written notice to any events the Indemnifying Party) have the right thereafter to defend, compromise or circumstances in respect of which the Indemnified settle such Third 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. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified PartyClaim.

Defense. (a) If the facts relating to a Loss arise out a Third Party Claimof the claim of any third party, 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 written notice to the Indemnified Party 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 counsel or accountants, reasonably satisfactory to the Indemnified Party, accountants at its cost and 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. 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 has will have been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and or employ counsel reasonably satisfactory to the Indemnified Party. 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 trial trials as may be reasonably requested in connection therewith. The 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 Claimthird 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 have any right or claim against such third party relating to such indemnified matterIndemnified 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 consent of the 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).

Defense. If So long as the facts relating conditions set forth in Section 8.4(a)(i) for the Indemnifying Party to assume the defense of a Loss arise out a Third Party Claim are and remain satisfied and the Indemnifying Party is vigorously defending such Third Party Claim, or if there is any claim against a third party available by virtue the Indemnifying Party may conduct the defense of the circumstances 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 LossThird Party Claim and any related suit or proceeding. If there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate, the Indemnity Obligor may, as advised in writing by giving written notice to the Indemnified Party 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 outside counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost for the same counsel to represent both the Indemnified Party and expense; providedthe Indemnifying Party, however, that during the interim then the Indemnified Party shall use be entitled to retain one separate counsel in each jurisdiction for which the Indemnified Party reasonably determines counsel is required, which counsel shall be reasonably acceptable to the Indemnifying Party, at the expense of the Indemnifying Party. The Indemnifying Party shall not, 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, (ii) does or would reasonably be expected to interfere with or adversely affect the business, operations or assets of the Indemnified Party or any of its best efforts to take 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 action (not including settlement) reasonably necessary to protect against further damage or loss Liability 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 thereinmatter, 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 Obligorwith prejudice, (biv) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one involves Taxes or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and (v) would result in the reasonable judgment finding or admission of such counsel it is advisable for such Indemnified Party to employ separate counsel, any violation of Law or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to Governmental Order by the Indemnified Party. Whether or not the Indemnity Obligor chooses With respect 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 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 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 shall stand 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 place 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 Indemnified defense thereof, and (D) permit the other Party as and its counsel an opportunity to any events or circumstances in respect of review and comment on, which comments the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Indemnifying 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 consent of the Indemnified Partyreasonably consider, all legal papers to be submitted prior to their submission.

Defense. If the facts relating pertaining to a Loss arise out a Third Party Claimof the claim of any third party, 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 written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect to assume the defense or the prosecution thereofof such claim, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, accountants at its cost and 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 to participate thereinin such action, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment Indemnity Obligor failed to assume the defense or prosecution thereof has been specifically authorized within such 15-day period; or (b) the Indemnified Party determines there is a conflict of interest in the representation by counsel selected by the Indemnity Obligor, (b) such in which case the fees and expenses of counsel selected by the Indemnified Party has been advised by counsel reasonably satisfactory to shall be at the expense of the Indemnity Obligor. If the Indemnity Obligor assumes the defense of a proceeding, (i) it will be conclusively established for purposes of the Agreement that there the claims made in that proceeding are within the scope of and subject to indemnification; (ii) no compromise or settlement of such claims may be one or more legal defenses available to it which are different from or additional to those available to effected by the Indemnity Obligor without the Indemnified Party's consent unless (A) there is no finding or admission of any violation of applicable laws 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 reasonable judgment Indemnity Obligor; and (iii) the Indemnified Party will have no liability with respect to any compromise or settlement of such counsel it is advisable for such Indemnified Party to employ separate counselclaims effected without its consent. Notwithstanding the foregoing, or (c) the filing of any answer by the Indemnity Obligor has failed in order to preserve the rights of the Indemnified Party due to a filing deadline shall not in itself constitute its election to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Partya claim hereunder. Whether or not the Indemnity Obligor chooses so to defend or prosecute such claim, all the parties hereto to this Agreement shall cooperate in the defense or prosecution thereof of such claim and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial 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 which shall not 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 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 consent of the Indemnified Partyunreasonably withheld.

Defense. If In the facts relating to a Loss arise out a event any Third Party Claimshall 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 covered by the indemnity under this Agreement, or if there is in the event that a potential Loss, damage or expense comes to the attention of any claim against a third party available Party in respect of matters embraced by virtue 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 circumstances of the Lossdemand, the Indemnity Obligor may, by giving claim or lawsuit. Within thirty (30) days after written notice to by the Indemnified Party within 15 days following its receipt of (the notice “Notice”) to an Indemnifying Party of such claimdemand, elect to assume claim or lawsuit, except as provided in the defense or next sentence, the prosecution thereof, including Indemnifying Party shall have the employment of counsel or accountants, reasonably satisfactory to the Indemnified Partyoption, at its sole cost and expense, to retain counsel to defend any such demand, claim or lawsuit; providedprovided that counsel who will conduct the defense of such demand, however, that during the interim claim or lawsuit will be approved by the Indemnified Party shall use its best efforts to take all action (whose approval will not including settlement) reasonably necessary to protect against further damage or loss with respect to the Lossunreasonably be withheld. The Indemnified Party shall have the right right, at its own expense, to employ counsel separate from counsel employed by participate in the Indemnity Obligor in defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, if (i) the named parties to any such action proceeding (including any impleaded parties) include both the Indemnifying Party and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless 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 retained separate counsel for the Indemnified Party, (aii) the employment thereof has been specifically authorized of counsel by the Indemnity Obligor, (b) such Indemnified Party has been authorized in writing by the Indemnifying Party, 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 demand, 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 reasonably satisfactory to the Indemnity Obligor chosen by it that there may be one or more legal defenses available to it such Indemnified Party which are different from or additional in addition to those available which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the Indemnity Obligor and in election of the reasonable judgment of such counsel it is advisable for such Indemnified Party, the Indemnifying Party will not have the right to employ separate counsel, or (c) the Indemnity Obligor has failed to assume continue the defense of such action demand, claim or lawsuit on behalf of such Indemnified Party and employ will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel reasonably satisfactory to retained by the Indemnified Party. Whether or not Party to undertake the Indemnity Obligor chooses 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 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 consentdefense. In the event of payment by that the Indemnity Obligor Indemnifying Party shall fail 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 respond within thirty (30) days after receipt of the Indemnified Party as to any events or circumstances in respect of which Notice, the Indemnified Party may have any right retain counsel and conduct the defense of such demand, claim or claim against lawsuit, as it may in its sole discretion deem proper, 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. Failure to provide Notice shall not limit the rights of such third party relating to indemnification, except to the extent the Indemnifying Party’s defense of the action is actually prejudiced by such indemnified matterfailure. 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 consent assumption of the Indemnified Partydefense, or the non-assumption of the defense, by the purported Indemnifying Party will not affect such party’s right to dispute its obligation to provide indemnification hereunder.

Defense. If the facts relating pertaining to a Loss arise out a Third Party Claimof the claim of ------- any third party, 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 written notice to the Indemnified Party within 15 30 days following its receipt of the notice of such claim, elect to assume the defense or the prosecution thereofof such claim, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, accountants at its cost and 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; provided that such counsel or accountants shall be reasonably satisfactory to the Indemnified Party; provided that the Indemnity Obligor agrees prior to assuming such defense or prosecution of the claim that it is obligated to indemnify the Indemnified Party for the loss suffered by the Indemnified Party as a result of such claim; provided that the Indemnity Obligor can demonstrate to the reasonable satisfaction of the Indemnified Party that such Indemnity Obligor has the financial ability to satisfy such indemnity obligation; and provided that any compromise or settlement must be reasonably approved by the Indemnified Party. Notwithstanding the foregoing, if an Indemnified Party determines in good faith that there is a reasonable probability that a claim may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the Indemnified Party may, by notice to the Indemnity Obligor, assume the exclusive right to defend, compromise or settle such claim, but the Indemnity Obligor will not be bound by any determination of a claim so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). 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 thereinin such action, 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 may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to 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, all the parties hereto to this Agreement shall cooperate in the defense or prosecution thereof of such claim and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial trials as may be reasonably requested in connection therewith. The No 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 which shall not 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 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 consent of the Indemnified Partyunreasonably withheld.

Defense. 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 mayshall, by giving written notice to the Indemnified Party 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 counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; providedPROVIDED, howeverHOWEVER, 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 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 may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend defends or prosecute prosecutes 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 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 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 consent of the Indemnified Party.

Defense. If 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 facts relating Indemnifying Party under such Section, shall provide the Indemnifying Party with written particulars thereof; provided that failure to a Loss arise out a Third provide the Indemnifying Party Claim, or if there is with such particulars shall not relieve such Indemnifying Party from any claim against a third party available by virtue liability which it might have on account of the circumstances indemnity provided for in this Article Seven except insofar as such failure shall prejudice such Indemnifying Party. The Indemnified Party shall also provide to 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 Lossprogress 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 but such defence shall be conducted by counsel of good standing approved by the Indemnified Party, such approval not to be unreasonably withheld. Upon the Indemnifying Party notifying the Indemnified Party of its election so to assume the defence and retaining such counsel, the Indemnity Obligor may, by giving written notice Indemnifying Party shall not be liable to the Indemnified Party within 15 days following its receipt for 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 notice of such claimIndemnifying Party, elect to assume it shall, through the defense or the prosecution course thereof, including the employment provide copies of counsel or accountants, reasonably satisfactory all relevant documentation to the Indemnified Party, at its cost keep such Indemnified Party advised of the progress thereof and expense; provided, however, that during the interim shall discuss with the Indemnified Party all significant actions proposed. No Indemnifying Party shall use enter into any settlement without the consent of the Indemnified Party, but such consent shall not be unreasonably withheld. If such defence is not assumed by the Indemnifying Party, the Indemnifying Party shall not be liable for any settlement made without its best efforts to take all action (consent, but such consent shall not including settlement) reasonably necessary to protect against further damage or loss with respect to be unreasonably withheld. Notwithstanding the Loss. The foregoing, an Indemnified Party shall have the right right, at the Indemnifying Party's expense, to employ counsel separate from counsel employed by of its own choice in respect of the Indemnity Obligor in defence of any such action and to participate thereinaction, but the fees and expenses of such counsel shall be at the Indemnified Party's own expensesuit, unless proceeding or claim if (a) the employment thereof of such counsel has been specifically authorized by the Indemnity Obligor, Indemnifying Party in connection with such defence; or (b) such counsel retained by the Indemnifying Party or the Indemnified Party has been shall have advised by counsel reasonably satisfactory to the Indemnity Obligor Indemnified Party that there may be one or more legal defenses defences available to it which are different from or additional in addition to those available to the Indemnity Obligor Indemnifying Party (in which event and in to that extent, the reasonable judgment Indemnifying Party shall not have the right to assume or direct the defence on behalf of such counsel it is advisable for such the Indemnified Party) or that there may be a conflict of interest between the Indemnifying Party to employ separate counsel, and the Indemnified Party; or (c) the Indemnity Obligor has failed to assume the defense Indemnifying Party shall not have assumed such defence and employed counsel therefor within a reasonable time after receiving notice of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether action, suit, proceeding or not the Indemnity Obligor chooses 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 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 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 consent of the Indemnified Party.

Defense. If the facts relating to a Loss arise out a Third Party Claimany claim, demand or if there liability is asserted by any claim against a third party available by virtue against any Indemnified Party, the Indemnifying Party shall have the right and shall upon the written request of the circumstances Indemnified Party, defend any Actions brought against the Indemnified Party in respect of the Loss, the Indemnity Obligor may, by giving written notice any Indemnifiable Claims with counsel of its choice reasonably acceptable to the Indemnified Party within 15 days following and, in the case of a Tax-related Action, tax advisors of its receipt of the notice of such claim, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, choice reasonably satisfactory acceptable to the Indemnified Party. In any such action or proceeding, at its cost and 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 to participate thereinretain its own counsel, but the fees and expenses of such counsel shall be at the Indemnified Party's its own expense, expense unless (a) the employment thereof has been specifically authorized by Indemnifying Party and the Indemnity ObligorIndemnified 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 has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor Party, and in the reasonable judgment of such counsel it is advisable for such the Indemnified Party, representation of the Indemnifying Party and the Indemnified Party by the same counsel would be inadvisable due to employ separate counselpotential conflicts of interests between them. The Parties shall cooperate and may participate in the defense of all third-party 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 the 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. If written notice is given to an Indemnifying Party of the commencement of any Action and the Indemnifying Party does not, within twenty (c20) days after the Indemnity Obligor has failed Indemnified Party's written notice is given, give written notice to the Indemnified Party of its election to assume the defense of such action and employ counsel reasonably satisfactory to Action, the Indemnifying Party shall be bound by any determination made in such Action or any compromise or settlement effected by the Indemnified Party. Whether or not In connection with the Indemnity Obligor chooses to defend or prosecute such defense of any claim, all each Party shall make available to the parties hereto shall cooperate in the defense Party controlling such defense, any books, records or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be other documents within its control that are reasonably requested in connection therewith. The Indemnity Obligor shall not be liable the course of or necessary or appropriate 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 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 consent of the Indemnified Partydefense.

Defense. If OF CLAIMS -- The Company shall be entitled to participate in the facts relating to a Loss arise out a Third Party Claim, defense of any Indemnifiable 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 written notice to the Indemnified Party 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 with counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expenseIndemnitee; 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 if Indemnitee believes, after consultation with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed selected by the Indemnity Obligor in any such action and to participate thereinIndemnitee, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless that (a) the employment thereof has been specifically authorized use of counsel chosen by the Indemnity ObligorCompany to represent Indemnitee would present such counsel with an actual or potential conflict, (b) the named parties in any such Indemnified Party has been advised by counsel reasonably satisfactory to Indemnifiable Claim (including any impleaded parties) include both the Indemnity Obligor Company and Indemnitee and Indemnitee shall conclude that there may be one or more legal defenses available to it which him or her that are different from or additional in addition to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, Company or (c) any such representation by such counsel would be precluded under the Indemnity Obligor has failed applicable standards of professional conduct then prevailing, then Indemnitee shall be entitled to assume retain separate counsel (but not more than one law firm plus, if applicable, local counsel with respect to any particular Indemnifiable Claim) at 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, 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 trial as may be reasonably requested in connection therewithCompany's expense. The Indemnity Obligor Company shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company's prior written consent. The Company shall not, 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 claim effected without settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee shall unreasonably withhold 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 consent to any events or circumstances in respect proposed settlement; provided, however, that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release 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. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified PartyIndemnitee.

Defense. If The Indemnifying Party shall have the facts relating right to a Loss arise out a Third Party Claimdirect, or if there is any claim against a third party available by virtue through counsel of the circumstances of the Lossits own choosing, the Indemnity Obligor may, by giving written notice to defense or settlement of any action or proceeding brought against the Indemnified Party within 15 days following its receipt in respect of the notice of such claim, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expenseThird Party Claims; provided, however, that during the interim Indemnifying Party 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 shall use or, regardless of the terms of such settlement, if the Indemnifying Party disputes its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss liability with respect to the LossThird Party Claim. The If the Indemnifying Party elects to assume the defense of any such claim or proceeding, the Indemnified Party may participate in such defense at its own expense. If the Indemnifying Party fails to 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 shall have the right to employ direct, at the Indemnifying Party's sole cost and expense, through counsel separate from counsel employed by of its own choosing, the Indemnity Obligor in defense or settlement of any such action 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 right to participate thereinin 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 foregoing provisions of this SECTION 10.3(b), but if the fees Indemnifying Party disputes its liability to the Indemnified Party 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 be required to bear the costs and expenses of such counsel shall be at the Indemnified Party's own expensedefense pursuant to this SECTION 10.3(b), unless (a) and the employment thereof has been specifically authorized Indemnified Party shall reimburse the Indemnifying Party in full for all costs and expenses incurred by the Indemnity Obligor, (b) Indemnifying Party in connection with such Indemnified Third Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume Claim. The party directing the defense of shall pursue such action defense diligently and employ counsel reasonably satisfactory to the Indemnified Partypromptly. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the 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 trial as may be reasonably requested in of all Third Party Claims. In connection therewith. The Indemnity Obligor shall not be liable for any settlement with the defense 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, each party shall make available to the Indemnity Obligor shall be subrogated to and shall stand party controlling such defense any books, records, or other documents within its control that are reasonably requested in the place course of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right necessary or claim against appropriate for 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 consent of the Indemnified Partydefense.

Defense. If Upon receipt of notice under Section 13.2(a) from 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 LossIndemnitee, the Indemnity Obligor mayIndemnifying Party will have the duty to either to compromise or defend, at its own expense and by giving written notice counsel (reasonably satisfactory to the Indemnified Indemnitee), such Action. The Indemnifying Party within 15 days following its will promptly (and in any event not more than [**] after receipt of the notice Indemnitee's original notice) notify the Indemnitee in writing of its intention to either compromise or defend such claim, elect Action. Once the Indemnifying Party notifies the Indemnitee of its election to assume the defense or of an Action, the prosecution thereof, including Indemnifying Party is not liable to the employment Indemnitee for the fees of other counsel or accountantsany other expenses subsequently incurred by the Indemnitee in connection with such defense, reasonably satisfactory to other than the Indemnified PartyIndemnitee's reasonable costs of investigation and cooperation. However, at its cost and 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 Indemnitee shall have the right to employ separate counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate thereinin the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, but the fees costs, and expenses of such counsel shall be at the Indemnified Party's own expense, unless counsel) if: (ai) the employment thereof has been specifically authorized use of the counsel chosen by the Indemnity ObligorIndemnifying Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, (b) or targets of, such Indemnified Action include both the Indemnifying Party has been advised by counsel and the Indemnitee, and the Indemnitee reasonably satisfactory to the Indemnity Obligor concludes that there may be one or more legal defenses available to it which that are different from or additional to those available to the Indemnity Obligor and Indemnifying Party (in which case the reasonable judgment of such counsel it is advisable for such Indemnified Indemnifying Party to employ separate counsel, or (c) shall not have the Indemnity Obligor has failed right to assume the defense of such action and Action on the Indemnitee's behalf); (iii) the Indemnifying Party does not employ counsel reasonably satisfactory to the Indemnified Party. Whether Indemnitee to represent the Indemnitee within a reasonable time after the Indemnitee's notice of such Action; (iv) the Indemnifying Party denies or not the Indemnity Obligor chooses fails to timely admit its obligation to defend or prosecute such claim, all and indemnify the parties hereto shall cooperate Action; or (v) in the defense or prosecution thereof and shall furnish such records, 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 reasonable opinion of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor counsel to the Indemnified Party in connection with any Loss arising out of a Third Party ClaimIndemnitee, the Indemnity Obligor shall be subrogated to and shall stand claim could result in the place Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a materially adverse effect on the ongoing business of the Indemnified Party 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. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified PartyIndemnitee.

Defense. If Upon receipt of notice under Section 8.3.1 from the facts relating Indemnitee, the Indemnifying Party shall have the duty to a Loss arise out a Third either compromise or defend, at its own expense and by counsel (reasonably satisfactory to Indemnitee, such Action. The Indemnifying Party Claim, or if there is shall promptly and in any claim against a third party available by virtue event not more than twenty (20) days after receipt of the circumstances Indemnitee's original notice) notify the Indemnitee in writing that it wishes to assume control of the LossAction 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 Indemnity Obligor may, by giving written Indemnifying Party of any defenses it may assert against any Indemnified Party's claim for indemnification. Once the Indemnifying Party gives such notice to the Indemnified Indemnitee, the Indemnifying Party within 15 days following its receipt is not liable to the Indemnitee for the fees of the notice of such claim, elect to assume the defense or the prosecution thereof, including the employment of other counsel or accountantsany other expenses subsequently incurred by the Indemnitee in connection with such defense, reasonably satisfactory to other than the Indemnified PartyIndemnitee's reasonable costs of investigation and cooperation. However, at its cost and 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 Indemnitee shall have the right to employ separate counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate thereincontrol the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, but the fees costs, and expenses of such counsel shall be at the Indemnified Party's own expense, unless counsel) if: (a) the employment thereof has been specifically authorized use of the counsel chosen by the Indemnity Obligor, Indemnifying Party would present such counsel with a conflict of interest; (b) the actual or potential defendants in, or targets of, such Indemnified Action include both the Indemnifying Party has been advised by counsel and the Indemnitee, and the Indemnitee reasonably satisfactory to the Indemnity Obligor concludes that there may be one or more legal defenses available to it which that are different from or additional to those available to the Indemnity Obligor and Indemnifying Party (in which case the reasonable judgment of such counsel it is advisable for such Indemnified Indemnifying Party to employ separate counsel, or (c) shall not have the Indemnity Obligor has failed right to assume the defense of such action and Action on the Indemnitee's behalf); (c) the Indemnifying Party does not employ counsel reasonably satisfactory to the Indemnified Party. Whether or not Indemnitee to represent the Indemnity Obligor chooses to defend or prosecute Indemnitee within a reasonable time after the Indemnitee's notice of such claim, all the parties hereto shall cooperate Action; or (d) in the defense or prosecution thereof and shall furnish such records, 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 reasonable opinion of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor counsel to the Indemnified Party in connection with any Loss arising out of a Third Party ClaimIndemnitee, the Indemnity Obligor shall be subrogated to and shall stand claim could result in the place Indemnitee becoming subject to injunctive relief or relief other than the payment of Losses that could have a materially adverse effect on the ongoing business of the Indemnified Indemnitee; provided, however, that in no event shall the Indemnifying Party as be obligated to any events or circumstances in respect bear the fees, costs and expenses 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. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent more than one (1) separate counsel for all of the Indemnified other Party's Indemnitees in such Action.

Defense. If the facts relating pertaining to a Loss by a Buyer Indemnified Party or a Company Indemnified Party, as the case may be, arise out a Third Party Claimof the claim of any third party, 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 written notice to the Indemnified applicable Indemnifying Party within 15 days following its receipt of the notice of such claim, elect to may assume the defense or the prosecution thereofthereof by written notice to such Buyer Indemnified Party or Seller Indemnified Party, including the employment of counsel or accountants, accountants reasonably satisfactory to the such Buyer Indemnified Party or Seller Indemnified Party, at its the Indemnifying Party's cost and expense; provided, however, that during the interim the . Such Buyer 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 Seller Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor such Indemnifying Party in any such action and to participate therein, but the fees and expenses of such counsel employed by such Buyer Indemnified Party or Seller Indemnified Party shall be at its expense. The Indemnifying Party shall not 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 Buyer Indemnified Party or Seller Indemnified Party's own expense, unless (a) as the employment thereof has been specifically authorized by the Indemnity Obligorcase may be, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may which consent will not be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Partyunreasonably withheld. Whether or not the Indemnity Obligor Indemnifying Party chooses to so 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 testimony, and shall attend such conferences, discovery proceedings proceedings, hearings, trials and trial appeals, 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 Indemnifying Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to all rights and shall stand in the place remedies of the Buyer Indemnified Party 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. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Seller Indemnified Party, as the case may be.

Defense. The Indemnified Party and the Indemnifying Party shall cooperate with the party assuming the defense, compromise or settlement of any such Action in accordance herewith in any manner that such party reasonably may request. If the facts relating to a Loss arise out a Third Indemnifying Party Claim, or if there is so assumes the defense of any claim against a third party available by virtue of the circumstances of the Losssuch Action, the Indemnity Obligor may, by giving written notice to the Indemnified Party 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 counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and 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 separate counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate thereinin (but not control) the defense, compromise, or settlement thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party's own expense, Party unless (a) the employment thereof Indemnifying Party has been specifically authorized by the Indemnity Obligoragreed to pay such fees and expenses, (b) such any relief other than the payment of money damages is sought against the Indemnified Party has or (c) the Indemnified Party shall have been advised by its counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which that are different from or additional to those available to the Indemnity Obligor Indemnifying Party or that there may be a conflict of interest between the Indemnifying Party and the Indemnified Party in the reasonable judgment conduct of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory Action (in either of which cases the Indemnifying Party shall not have the right to direct the defense, compromise or settlement of such Action on behalf of the Indemnified Party. Whether or not ), and in any such case the Indemnity Obligor chooses to defend or prosecute reasonable fees and expenses of such claimseparate counsel shall be borne by the Indemnifying Party, all it being understood and agreed, however, that 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 trial as may be reasonably requested in connection therewith. The Indemnity Obligor Indemnifying Party shall not be liable for the fees and expenses of more than one separate firm of attorneys at any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to time for the Indemnified Party in connection together with any Loss arising out of a Third Party Claimits Affiliates, the Indemnity Obligor unless there shall be subrogated to and shall stand in the place a conflict of interest between the Indemnified Party as to 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 events or circumstances in respect of which time for the Indemnified Party may have any right or claim against such third party relating to such indemnified matterand its Affiliates. The No Indemnified Party shall cooperate settle or compromise or consent to entry of any Judgment with respect to any such Action for which it is entitled to indemnification hereunder without the Indemnity Obligor prior written consent of the Indemnifying Party, unless the Indemnifying Party shall have failed, after reasonable notice thereof, to undertake control of such Action in prosecuting any subrogated claimthe manner provided above in this Section 7.4. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Indemnifying Party shall not, without the written consent of the 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 of a release from all liability with respect to such Action.