Common use of Defense Clause in Contracts

Defense. If the facts pertaining to a loss arise out of 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 “Indemnifying Party” may assume the defense or the prosecution thereof by prompt written notice to the Indemnified Party, including the employment of counsel or accountants, at its cost and expense. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the 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 prior written consent. Whether or not the 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Party.

Defense. If Subject to the facts pertaining to limitations set forth in this Section 10.5(b), in the event of a loss arise out of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the LossThird Party Claim, the “Indemnifying Party” may assume Party shall have the defense or the prosecution thereof right (exercisable by prompt written notice to the Indemnified Party within ten (10) days after the Indemnified Party has given a Claim Notice of the Third Party Claim) to elect to conduct and control, through counsel of its choosing and at the Indemnifying Party’s sole cost and expense, including the employment defense, compromise or settlement of the Third Party Claim if the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall provide indemnification to the Indemnified Party in respect thereof; provided, however, that the Indemnified Party may participate therein through separate counsel or accountants, chosen by it and at its sole cost and expense. The 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 of counsel selected by the Indemnifying Party to represent the Indemnified Party would present such counsel with an actual or potential conflict of interest, or (D) the Third Party Claim is for injunctive, equitable or other non-monetary relief against the Indemnified Party, then in each such case the Indemnified Party shall have the right to employ control the defense, compromise or settlement of the Third Party Claim with counsel separate of its choice at the Indemnifying Party’s sole cost and expense. In connection with any Third Party Claim, from counsel employed by and after delivery of a Claim Notice, the Indemnifying Party in any such action and to participate therein, but the fees and expenses of such counsel employed by the Indemnified Party shall, and shall be at cause their expense. The Indemnifying Party shall not be liable for any settlement of any such claim effected without its prior written consentrespective Affiliates and representatives to, which shall not be unreasonably withheld; provided that if the Indemnifying Party does not assume cooperate fully in connection with the defense or prosecution of a claim as provided above within thirty (30) days after notice thereofsuch Third Party Claim, 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 prior written consent. Whether or not the 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 including furnishing such records, information and testimony, testimony and attend attending such conferences, discovery proceedings, hearings, trials and appeals, appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. The Indemnifying In addition, the party controlling the defense of any Third Party Claim shall be subrogated to all rights and remedies keep the non-controlling party advised of the Indemnifying Partystatus thereof and shall consider in good faith any recommendations made by the non-controlling party with respect thereto.

Defense. If Unless the facts pertaining to Parties otherwise agree, a loss arise out Party shall assume the primary responsibility for the conduct of the claim defense of any third party, or if there is any such claim against a third party available by virtue of the circumstances of the Loss, the “Indemnifying relating to such Party” may assume the defense or the prosecution thereof by prompt written notice to the Indemnified Party, including the employment of counsel or accountants’s Product, at such Party’s sole expense, and with legal counsel of its cost and expensechoice. The Indemnified other Party shall have the right right, but not the obligation, to employ counsel separate from counsel employed by the Indemnifying Party participate and be independently represented in any such action suit at its sole option and to participate therein, but the fees and expenses of such counsel employed by the Indemnified at its own expense. Each Party shall be at their expensereasonably cooperate with the Party conducting the defense of the claim. The Indemnifying Each Party shall not be liable for keep the other Party hereto reasonably informed of all material developments in connection with any settlement such claim, suit or proceeding, and the Parties shall reasonably cooperate in conducting the defense of any such claim effected without its prior written consentclaim. Should Lilly decide not to defend or fail to defend any such claim, which shall not be unreasonably withheld; provided that if the Indemnifying suit, or proceedings by a Third Party does not assume the defense or prosecution of relating to a claim as provided above Lilly Target within thirty (30) days after of notice thereofof such claim, suit, or proceeding, then NextCure will be entitled to take over, at its option, the Indemnified right to defend such infringement proceedings and the control of any such defense, at NextCure’s cost and should NextCure decide not to defend or fail to defend any such claim, suit, or proceedings by a Third Party may settle relating to a NextCure Target within thirty (30) days of notice of such claim without claim, suit, or proceeding, then Lilly will be entitled to take over, at its option, the Indemnifying right to defend such infringement proceedings and the control of any such defense; provided, however, that, the Parties shall refer to the JPC any strategy dispute between the Parties with respect to defense of such claim, suit or proceeding for good faith discussion and resolution, and, in the event that the JPC cannot resolve such strategy, (a) NextCure shall not have the right to defend such infringement relating to a Lilly Target, Lilly Compound and/or Lilly Product if, in Lilly’s sole discretion, Lilly (subsequent to such JPC referral) determines such defense should not be made as a matter of strategy and (b) Lilly shall not have the right to defend such infringement relating to a NextCure Target, NextCure Compound and/or NextCure Product if, in NextCure’s sole discretion, NextCure (subsequent to such JPC referral) determines such defense should not be made as a matter of strategy. Neither Party shall enter into any settlement that affects any of the other Party’s consent. The Indemnifying Party shall not agree to a settlement of any claim which provides for any relief rights or interests without such 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 prior written consent. Whether , not to be unreasonably withheld, conditioned or not the 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Partydelayed.

Defense. If Upon receipt of notice under Subsection (a) from the facts pertaining Indemnitee, the Indemnifying Party will have the duty to a loss arise out either compromise or defend, at its own expense and by counsel (reasonably satisfactory to Indemnitee), such Action. The Indemnifying Party will promptly (and in any event not more than twenty (20) days after receipt of the claim Indemnitee's original notice) notify the Indemnitee in writing that it acknowledges its obligation to indemnify the Indemnitee with respect to the Action pursuant to this Article 8 and of any third party, its intention to either compromise or if there is any claim against a third party available by virtue of defend such Action. Once the circumstances of the Loss, the “Indemnifying Party” may assume the defense or the prosecution thereof by prompt written Party gives such notice to the Indemnified PartyIndemnitee, including the employment Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or accountantsany other expenses subsequently incurred by the Indemnitee in connection with such defense, at its cost other than the Indemnitee's reasonable costs of investigation and expensecooperation. The Indemnified Party shall However, the Indemnitee will have the right to employ separate counsel separate from and to control the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses of such counsel) if: (i) the use of the counsel employed chosen by the Indemnifying Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the Indemnitee, and the Indemnitee reasonably concludes that there may be legal defenses available to it that are different from or additional to those available to the Indemnifying Party (in any such action and which case the Indemnifying Party will not have the right to participate therein, but assume the fees and expenses defense of such counsel employed by Action on 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 Indemnitee's behalf); (iii) the Indemnifying Party does not assume employ counsel satisfactory to the defense Indemnitee to represent the Indemnitee within a reasonable time after the Indemnitee's notice of such Action; (iv) the Indemnifying Party denies or prosecution fails to timely admit its obligation to defend and indemnify the Action; or (v) in the reasonable opinion of a claim as provided above within thirty (30) days after notice thereofcounsel to the Indemnitee, the Indemnified Party may settle such claim without could result in the Indemnifying Party’s consent. The Indemnifying Party shall not agree Indemnitee becoming subject to a settlement of any claim which provides for any injunctive relief or relief other than the payment of monetary damages or which Damages that could have a material precedential impact or materially adverse effect on the ongoing business or financial condition of any Indemnified Party without the Indemnified Party’s prior written consent. Whether or not Indemnitee; provided, however, that in no event shall the Indemnifying Party chooses be obligated to so defend or prosecute such claimbear the fees, costs and expenses of more than one (1) separate counsel for all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying other Party's Indemnitees in such Action.

Defense. If the facts pertaining any action is brought against an indemnified party by a Third Party with respect to a loss arise out of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the Lossmatter subject to indemnification under this Agreement, the “Indemnifying Party” may indemnifying Party will be entitled to participate in and to assume the defense or the prosecution thereof by prompt written notice to the Indemnified 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, at its cost and expense. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the 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 indemnifying Party shall not be liable to such indemnified party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof unless the indemnifying Party has failed to assume and diligently prosecute the defense of such claim. Notwithstanding any of the foregoing to the 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. As a condition to the indemnifying Party’s obligations hereunder, the indemnified party will in good faith cooperate with and assist the indemnifying Party in the prosecution or defense of such indemnified claim at no unreasonable expense to the indemnified party. No indemnifying Party shall consent to entry of any judgment or enter into any settlement with respect to a claim either (a) without the consent of the indemnified party, which consent shall not be unreasonably withheld, or (b) unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability with respect to such claim. No indemnified party shall consent to entry of any judgment or enter into any settlement of any such claim effected action, the defense of which has been assumed by an indemnifying Party, without its prior written consentthe consent of such indemnifying Party, which consent 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 prior written consent. Whether or not the 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Party.

Defense. If the facts pertaining to a loss Loss arise out of 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 “Indemnifying Party” may Indemnity Obligor may, by giving written notice to the Indemnified Party within twenty (20) days following its receipt of the notice of such claim, elect to assume the defense or the prosecution thereof by prompt written notice to the Indemnified Partythereof, including the employment of counsel or accountants, accountants at its cost and expense; provided, however, that the Indemnity Obligor may assume the defense or prosecution thereof only if (i) it provides evidence reasonably acceptable to the Indemnified Party that it will have the financial resources to defend the claim and satisfy its indemnification obligations; (ii) it obtains counsel which is reasonably satisfactory to the Indemnified Party; (iii) the third party claim involves only money damages and does not seek an injunction or other equitable relief; (iv) it conducts the defense of the claim actively and diligently; and (v) it keeps the Indemnified Party 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 Indemnifying Party Indemnity Obligor 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 prior written consentown expense. Whether or not the Indemnifying Party Indemnity Obligor chooses so 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, hearings, proceedings and trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Indemnity Obligor shall have the right to settle, adjust or compromise such claim; provided, however, that the Indemnified Party shall not be subrogated to all rights and remedies liable or obligated for any such settlement, adjustment or compromise of the Indemnifying Partyany such claim effected without its prior written consent.

Defense. If a Third Party Claim is made against the facts pertaining Indemnified Party, then the Indemnifying Party shall be entitled to a loss arise out participate in the defense thereof at its sole cost and expense, and, if the Indemnifying Party so chooses, it shall have twenty (20) days from its receipt of 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, Indemnification Notice (the “Indemnifying Party” may Notice Period”) to notify the Indemnified Party that it desires to assume the defense or thereof with counsel selected by the prosecution thereof by prompt written notice Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided, including that the employment Indemnifying Party shall not be entitled to assume the defense, and shall be liable for the reasonable fees and expenses of counsel employed by the Indemnified Party, if (i) the claim for indemnification is with respect to a criminal Action; (ii) the claims seeks an injunction on, or accountantsother equitable relief against, at its cost 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 expensethe 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 (i) prior to assuming the defense of such Third Party Claim, the Indemnifying Party shall provide to the Indemnified Party an undertaking stating that such Indemnifying Party is able to and will assume the payment of all defense fees and costs and (ii) the Indemnifying Party’s assumption of the defense of such Third Party Claim shall not signify any agreement, obligation or commitment on the part of the Indemnifying Party to assume or pay any amount awarded to a claimant in respect of such Third Party Claim. If the Indemnifying Party assumes such defense (in accordance with this Section 8.5(b)), then the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel counsel, at its own expense, separate from the counsel employed by the Indemnifying Party in any such action and to participate thereinParty, but it being understood, however, that 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 control 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 consentdefense. 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 prior written consent. Whether or not If the Indemnifying Party chooses to so 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 testimonyexplanation of any material provided hereunder. Notwithstanding any other provision of this Agreement, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The the Indemnifying Party shall not enter into a settlement of any Third Party Claim without the prior written consent of the Indemnified Party (which consent shall not be subrogated unreasonably withheld or delayed), except to the extent such settlement does not provide for liability or the creation of a financial or other obligation (including the imposition of an injunction or other equitable relief) on the part of the Indemnified Party, does not provide for any statement of liability, wrongdoing, criminal offense or finding or admission of any violation of Law by the Indemnified Party and provides, in customary form, for the full, complete and unconditional release of each Indemnified Party from all rights liabilities and remedies obligations in connection with 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, (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 in good faith, then the Indemnified Party shall (upon further written notice) have the right to defend and compromise or settle of such Third Party Claim or consent to the entry of judgment with respect to such Third Party Claim, in each case at the cost and expense of the Indemnifying Party. If the Indemnified Party has assumed the defense pursuant to this Section 8.5(b), it shall not agree to any settlement which imposes any obligation on the Indemnifying Party (including the imposition of an injunction or other equitable relief) or which provides for the any statement of liability, wrongdoing, criminal offense or finding or admission of any violation of Law by the Indemnifying Party without the prior written consent of the 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 pertaining In connection with any claim giving rise to a loss arise indemnity hereunder resulting from or arising out of the claim of any third party, or if there is any claim against or legal proceeding by a third person who is not a party available by virtue of the circumstances of the Lossto this Agreement, the “Indemnifying Party” may assume Party at its sole cost and expense and with counsel reasonably satisfactory to the defense or the prosecution thereof by prompt Indemnified Party may, upon written notice to the Indemnified Party, including assume the employment defense of counsel any such claim or accountantslegal proceeding if (a) the Indemnifying Party acknowledges to the Indemnified Party in writing, at within fifteen (15) days after receipt of notice from the Indemnified Party, its cost obligations to indemnify the Indemnified Party with respect to all elements of such claim, (b) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against such third-party claim and expensefulfill its indemnification obligations hereunder, (c) the third-party claim involves only money damages and does not seek an injunction or other equitable relief, and (d) settlement or an adverse judgment of the third-party claim is not, in the good faith judgment of the Indemnified Party, likely to establish a pattern or practice adverse to the continuing business interests of the Indemnified Party. The Indemnified Party shall have be entitled to participate in (but not control) the right to employ counsel separate from counsel employed by the Indemnifying Party in defense of any such action action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to participate therein, but the fees and expenses of such counsel employed by the Indemnified Party shall be at their expense. The that conflict with those available to the Indemnifying Party shall not be liable for any settlement of any such claim effected without its prior written consentParty, which shall not be unreasonably withheld; provided that or if the Indemnifying Party does not assume fails to take reasonable steps necessary to diligently defend the defense or prosecution of a claim as provided above within thirty (30) days after receiving notice thereoffrom the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party’s consent, which consent may not be unreasonably withheld. The If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall not agree to a settlement of any claim which provides for any relief other than reimburse 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 for the reasonable fees and expenses of counsels retained by the Indemnified Party’s prior written consent. Whether or not Party and the 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated entitled to all rights participate in (but not control) the defense of such claim, with its counsel and remedies at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the Indemnifying Partyevidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunder.

Defense. If the facts pertaining relating to a loss Loss arise out of 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 “Indemnifying Party” may 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 by prompt written notice to the Indemnified Partythereof, including the employment of counsel or accountants, accountants at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its commercially reasonable efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party Indemnity Obligor 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 the Indemnified Party's own expense. The Indemnifying , unless (i) the employment thereof has been specifically authorized by the Indemnity Obligor, (ii) such Indemnified Party shall not has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be liable 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 any settlement of any such claim effected without its prior written consentIndemnified Party to employ separate counsel, which shall not be unreasonably withheld; provided that if or (iii) the Indemnifying Party does not Indemnity Obligor has failed to 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 action and employ counsel reasonably satisfactory 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 prior written consent. Whether or not the Indemnifying Party Indemnity Obligor chooses so 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, hearings, proceedings and trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying 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 all rights and remedies shall stand in the place of the Indemnifying 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 Loss. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Party.

Defense. If a Third-Party Claim is made against the facts pertaining Indemnified Party, then the Indemnifying Party shall be entitled to a loss arise out of participate in the claim of any third partydefense thereof and, or if there is any claim against a third party available by virtue of the circumstances of the LossIndemnifying Party so chooses, the “Indemnifying Party” may to assume the defense or thereof with counsel selected by the prosecution thereof by prompt written notice Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party so elects to assume the defense of a Third-Party Claim, including then the employment 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 (i) prior to assuming the defense of such Third-Party Claim, the Indemnifying Party shall provide to the Indemnified Party an undertaking stating that such Indemnifying Party is able to and will assume the payment of all defense fees and costs and (ii) the Indemnifying Party’s assumption of the defense of such Third-Party Claim shall not signify any agreement, obligation or accountantscommitment on the part of the Indemnifying Party to assume or pay any amount awarded to a claimant in respect of such Third-Party Claim. If the Indemnifying Party assumes such defense, at its cost and expense. The 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 Indemnifying Party in any such action and to participate thereinParty, but it being understood, however, that 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 control 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 consentdefense. 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 prior written consent. Whether or not If the Indemnifying Party chooses to so 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 attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewithexplanation of any material provided hereunder. The 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 Third-Party Claim actively and in good faith, then the Indemnified Party shall be subrogated (upon further written notice) have the right to all rights defend and, subject to Section 8.05(c), compromise or settle of such Third-Party Claim or consent to the entry of judgment with respect to such Third-Party Claim, in each case at the cost and remedies expense of the Indemnifying Party.

Defense. If any Proceeding referred to in Section 10.9.1 is brought against an indemnified party and it gives notice to the facts pertaining to a loss arise out indemnifying party of the commencement of such Proceeding, the indemnifying party will, unless the claim of any third partyis a Tax Claim, be entitled to participate in such Proceeding and, to the extent 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, or if there is any claim against a third (ii) the indemnifying party available by virtue fails to provide reasonable assurance to the indemnified party of the circumstances of the Lossits financial capacity to defend such Proceeding and provide indemnification with respect to such Proceeding), the “Indemnifying Party” may to assume the defense of such Proceeding with counsel satisfactory to the indemnified party and, after notice from the indemnifying party to the 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 any other expenses with respect to the prosecution thereof defense of such Proceeding, in each case subsequently incurred by prompt written 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 subject to indemnification; (ii) no compromise or settlement of such claims may be 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 full by the indemnifying party; and (iii) the indemnifying party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of the commencement of any Proceeding and the indemnifying party does not, within ten (10) days after the indemnified party’s notice is given, give notice to the Indemnified Party, including the employment indemnified party of counsel or accountants, at its cost and expense. The Indemnified Party shall have the right election to employ counsel separate from counsel employed by the 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 thereofsuch Proceeding, the Indemnified Party may settle indemnifying party will be bound by any determination made in such claim without Proceeding or any compromise or settlement effected by 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 prior written consent. Whether or not the 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Partyindemnified party.

Defense. The Indemnifying Party shall have the right to direct, through counsel of its own choosing, the defense or settlement of any action or proceeding brought against the Indemnified Party in respect of Third Party Claims; provided, however, that the 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 or, regardless of the terms of such settlement, if the Indemnifying Party disputes its liability with respect to the Third Party Claim. If the facts pertaining Indemnifying Party elects to a loss arise out of 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 “Indemnifying Party” may assume the defense of any such claim or the prosecution thereof by prompt written notice to proceeding, the Indemnified Party, including the employment of counsel or accountants, Party may participate in such defense at its cost and own expense. The 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 of its own choosing, the 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 in and consent (which consent shall not be unreasonably withheld) to the settlement or assume or reassume the defense of such claim or proceeding. Notwithstanding the foregoing provisions of this SECTION 10.3(b), if the 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 the Indemnified Party's defense pursuant to this SECTION 10.3(b), and the Indemnified Party shall reimburse the Indemnifying Party in full for all costs and expenses incurred by the Indemnifying Party in any connection with such action and to participate therein, but the fees and expenses of such counsel employed by the Indemnified Third Party shall be at their expenseClaim. 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 party directing the defense or prosecution of a claim as provided above within thirty (30) days after notice thereof, the Indemnified Party may settle shall pursue such claim without the Indemnifying Party’s consentdefense diligently and promptly. 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 prior written consent. Whether or not the Indemnifying Party chooses to so defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and of all Third Party Claims. In connection with the defense of any Third Party Claim, each party shall furnish make available to the party controlling such defense any books, records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be or other documents within its control that are reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies the course of the Indemnifying Partyor necessary or appropriate for such defense.

Defense. If Upon receipt of notice under Section 13.2(a) from the facts pertaining Indemnitee, the Indemnifying Party will have the duty to a loss arise out either to compromise or defend, at its own expense and by counsel (reasonably satisfactory to Indemnitee), such Action. The Indemnifying Party will promptly (and in any event not more than [**] after receipt of the claim Indemnitee's original notice) notify the Indemnitee in writing of any third party, its intention to either compromise or if there is any claim against a third party available by virtue defend such Action. Once the Indemnifying Party notifies the Indemnitee of the circumstances of the Loss, the “Indemnifying Party” may its election to assume the defense or of an Action, the prosecution thereof by prompt written notice Indemnifying Party is not liable to the Indemnified Party, including Indemnitee for the employment fees of other counsel or accountantsany other expenses subsequently incurred by the Indemnitee in connection with such defense, at its cost other than the Indemnitee's reasonable costs of investigation and expensecooperation. The Indemnified Party However, the Indemnitee shall have the right to employ separate counsel separate from and to participate in the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses of such counsel) if: (i) the use of the counsel employed chosen by the Indemnifying Party in any such action and to participate therein, but the fees and expenses of would present such counsel employed by with a conflict of interest; (ii) the Indemnified actual or potential defendants in, or targets of, such Action include both the Indemnifying Party shall and the Indemnitee, and the Indemnitee reasonably concludes that there may be at their expense. The legal defenses available to it that are different from or additional to those available to the Indemnifying Party (in which case the Indemnifying Party shall not be liable for any settlement have the right to assume the defense of any such claim effected without its prior written consent, which shall not be unreasonably withheld; provided that if Action on the Indemnitee's behalf); (iii) the Indemnifying Party does not assume employ counsel satisfactory to the defense Indemnitee to represent the Indemnitee within a reasonable time after the Indemnitee's notice of such Action; (iv) the Indemnifying Party denies or prosecution fails to timely admit its obligation to defend and indemnify the Action; or (v) in the reasonable opinion of a claim as provided above within thirty (30) days after notice thereofcounsel to the Indemnitee, the Indemnified Party may settle such claim without could result in the Indemnifying Party’s consent. The Indemnifying Party shall not agree Indemnitee becoming subject to a settlement of any claim which provides for any injunctive relief or relief other than the payment of monetary damages or which Damages that could have a material precedential impact or materially adverse effect on the ongoing business or financial condition of any Indemnified Party without the Indemnified Party’s prior written consent. Whether or not the 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying PartyIndemnitee.

Defense. If (a) Each Party shall promptly notify the facts pertaining 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 (“Third Party Infringement”). In any such instance, the Parties shall as soon as practicable thereafter discuss in good faith the best response to a loss arise out such notice of Third Party Infringement, and, subject to Section 3.6, Gilead shall have the first right (but not the obligation) to defend any such claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the “Indemnifying Party” may assume the defense or the prosecution thereof by prompt written notice to the Indemnified Party, including the employment of counsel or accountantsThird Party Infringement, at its cost Gilead’s sole discretion, cost, and expense. The Indemnified Party , and Hookipa shall have the right to employ counsel separate from counsel employed by the Indemnifying Party be represented in any such action by counsel of its own choice at Hookipa’s sole cost 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 CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[***]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED. (b) If Gilead declines or fails to assert its intention to defend any such claim effected without its prior written consentof Third Party Infringement within [***] days following receipt or, which shall not be unreasonably withheld; provided that if the Indemnifying Party does not assume the defense or prosecution as applicable, sending of a claim as provided above within thirty notice pursuant to Section 11.4(a), then Hookipa shall have the right (30but not the obligation) days after notice thereof, the Indemnified Party may settle to defend such claim without of Third Party Infringement at Hookipa’s sole discretion, cost and expense, and Gilead shall have the Indemnifying Partyright to be represented in any such action by counsel of its own choice at Gilead’s consentsole cost and expense. (c) In no event shall either Party settle or otherwise compromise any Third Party Infringement by admitting that any Patent Right included within the Licensed Technology is invalid or unenforceable, unless explicitly approved by the other Party in writing. The Indemnifying In the event that Gilead, subject to Hookipa’s prior approval, enters into any settlement with respect to any actual or potential claim of Third Party shall not agree to a settlement Infringement which includes the acceptance of any claim which provides license to Patent Rights, Know-How, or other intellectual property rights owned or otherwise Controlled by any Third Party and necessary or useful for any relief other than the payment of monetary damages Research, Development, Manufacture, or which could have a material precedential impact or effect on the business or financial condition Commercialization of any Indemnified Party without the Indemnified Party’s prior written consent. Whether or not the Indemnifying Party chooses Licensed Product, such settlement shall further be subject 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying PartySection 9.5(c).

Defense. If (a) Promptly after the facts pertaining receipt by any person entitled to a loss arise out indemnification under Section 5.1 and 5.2 of this Agreement of notice of (i) any claim or (ii) the claim commencement of any third partyaction or proceeding, or such party (the "Aggrieved Party") will, if there claim with respect thereto is made against any claim against a third party available by virtue obligated to provide indemnification pursuant to Stock Purchase Agreement - Page 10 ------------------------ Section 5.1 and 5.2 of this Agreement (the circumstances of the Loss, the “"Indemnifying Party” may "), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the prosecution thereof by prompt written notice to action or proceeding seeks an injunction or other similar relief against the Indemnified Party, including Aggrieved Party or there is a conflict of interest between it and the employment Indemnifying Party in the conduct of counsel or accountants, at its cost and expensethe defense of such action. The Indemnified Party shall have the right to employ counsel separate from counsel employed Failure by the Indemnifying Party in 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 participate thereinholding the Aggrieved Party harmless from and against any losses, but 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 fees and expenses defense of such counsel employed by claim or litigation provided that the Indemnified Indemnifying Party shall be at their expensedirect 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 be liable for any settlement assume the defense of any such claim effected 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 Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without its prior written consentthe consent of the Indemnifying Party, which consent shall not be unreasonably withheld; provided that if . If no settlement of the claim or litigation is made, the Indemnifying Party does not assume shall promptly reimburse the defense or prosecution Aggrieved Party for the amount of a claim as provided above within thirty (30) days after notice thereof, the Indemnified Party may settle any judgment rendered with respect to such claim without or in such litigation and of all expenses, legal or otherwise, as incurred by the Indemnifying Party’s consent. The Indemnifying Aggrieved 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 prior written consent. Whether or not the Indemnifying Party chooses to so defend or prosecute such claim, all the parties hereto shall cooperate in the defense against such claim or prosecution thereof and litigation. (d) The rights to indemnification hereunder shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated apply to all rights and remedies claims made by either party against the other whereby written notice of the Indemnifying Party.claim has been made and delivered within the one-year period following the Closing Date unless otherwise provided herein. Stock Purchase Agreement - Page 11 ------------------------

Defense. If a Third Party Claim is made against the facts pertaining Indemnified Party, then the Indemnifying Party shall be entitled to a loss arise out of participate in the claim of any third partydefense thereof and, or if there is any claim against a third party available by virtue of the circumstances of the LossIndemnifying Party so chooses, the “Indemnifying Party” may to assume the defense or thereof with counsel selected by the prosecution thereof by prompt written notice Indemnifying Party and reasonably satisfactory to the Indemnified Party, including . The Indemnifying Party shall be liable for the employment reasonable fees and expenses of counsel or accountantsemployed 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. 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 Indemnifying Party, it being understood, however, that the Indemnifying Party in any shall control such action defense and to participate therein, but the fees and expenses of such counsel employed by the Indemnified Party shall be at their expensepay the expense of his or its separate counsel. 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 prior written consent. Whether or not If the Indemnifying Party chooses to so defend or prosecute such claimany Third Party Claim, all then the parties hereto Parties shall cooperate in the defense or prosecution thereof and of crossclaims or counterclaims relating to such Third Party Claim. Such cooperation shall furnish such recordsinclude, information and testimonywithout limitation, the retention, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of (upon the Indemnifying Party’s request) the provision to the Indemnifying Party, of records that are reasonably relevant to such Third Party Claim, and making employees of the Indemnified Party available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. If, but only if the Indemnifying Party, within a reasonable time after receipt of an Indemnification Notice relating to a Third Party Claim, chooses not to assume defense of a Third Party Claim or fails to defend such Third Party Claim actively and in good faith, then the Indemnified Party shall (upon further written notice to the Indemnifying Party) have the right thereafter to defend, compromise or settle such Third Party Claim.

Defense. (a) If the facts pertaining relating to a loss Loss arise out of 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 “Indemnifying Party” may 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 by prompt written notice to the Indemnified Partythereof, including the employment of counsel or accountants, 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 Indemnifying Party Indemnity Obligor 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 the Indemnified Party's own expense. The Indemnifying , unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party shall not will have been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be liable 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 any settlement of any such claim effected without its prior written consentIndemnified Party to employ separate counsel, which shall not be unreasonably withheld; provided that if or (c) the Indemnifying Party does not Indemnity Obligor has failed to assume the defense of such action 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 employ counsel reasonably satisfactory 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 prior written consent. Whether or not the Indemnifying Party Indemnity Obligor chooses so 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, hearings, proceedings and trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Except as previously set forth in this Section 13.04, the Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a third party claim, the Indemnity Obligor shall be subrogated to all rights and remedies shall stand in the place of the Indemnifying 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 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 In the facts pertaining event any person or entity not a party to this Agreement shall make a loss arise out demand or claim, file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential loss, damage or expense comes to the attention of any party in respect of matters embraced by the indemnity under this Agreement, then the party receiving notice or aware of such event shall promptly notify the other party or parties of the demand, claim or lawsuit. Within ten days after notice by the Indemnified Party (the "Notice") to an Indemnifying Party of any third partysuch demand, claim or if there is any claim against a third party available by virtue of lawsuit, except as provided in the circumstances of the Lossnext sentence, the “Indemnifying Party” may assume Party shall have the defense or the prosecution thereof by prompt written notice option, at its sole cost and expense, to retain counsel for the Indemnified Party, including to defend any such demand, claim or lawsuit, provided that counsel who shall conduct the employment defense of counsel such demand, claim or accountants, at its cost and expenselawsuit shall be approved by the Indemnified Party whose approval shall not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (a) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (other than differing interests associated with an Indemnifying Party's obligation to indemnify), or (b) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (c) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to employ retain its own counsel separate from counsel employed 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 action demand, claim or lawsuit, shall consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party; provided, however, that if a firm written offer is made by the third party to settle any claim, which involves only the payment of cash (United States dollars) and the claimant provides to participate thereinthe Indemnified Party a general release in a form reasonably acceptable to the Indemnified Party from all liability, and the Indemnifying Party proposes to accept (and pay in full the amount of ) such settlement but the fees Indemnified Party refuses to consent to such settlement, then: (i) the Indemnifying Party shall be excused from, and expenses of such counsel employed by the Indemnified Party shall be at their expense. The Indemnifying Party solely responsible for, all further defense costs related to such third-party claim; (ii) the maximum reimbursement amount relating to such third-party claim shall be the amount of the proposed settlement (plus any defense costs 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 paid by the Indemnifying Party does not assume prior to the defense or prosecution rejection of a claim as provided above within thirty (30the settlement) days after notice thereof, if the amount thereafter recovered from the Indemnified Party may settle on such claim without is greater that 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 prior written consent. Whether or not the 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies amount of the Indemnifying Party.proposed settlement; and;

Defense. If a Third-Party Claim is made against the facts pertaining Indemnified Party, then the Indemnifying Party shall be entitled to a loss arise out of 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 “Indemnifying Party” may assume participate in the defense or thereof and, if the prosecution Indemnifying Party so chooses, to assume (subject to the limitations set forth below) the defense thereof with counsel selected by prompt written notice the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided that, including the employment 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 Affiliates, other than an adjustment to the Tax basis of the Assets relating to an increase in Assumed Liabilities solely relating to such Third Party Claim; or (v) in the case of an Indemnified Party that is a Buyer Indemnified Party, such Indemnified Party reasonably believes that the monetary value of the Third Party Claim is reasonably estimated to (x) be less than the Deductible or (y) to exceed the Cap. If the Indemnifying Party so elects to assume (subject to the limitations set forth above) the defense of a Third-Party Claim, then the Indemnifying Party shall not be liable to the Indemnified Party for the reasonable fees and expenses of counsel subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, that (i) prior to assuming the defense of such Third-Party Claim, the Indemnifying Party shall provide to the Indemnified Party an undertaking stating that such Indemnifying Party is able to and will assume the payment of all defense fees and costs and (ii) the Indemnifying Party’s assumption of the defense of such Third-Party Claim shall not signify any agreement, obligation or accountantscommitment on the part of the Indemnifying Party to assume or pay any amount awarded to a claimant in respect of such Third-Party Claim. If the Indemnifying Party assumes (subject to the limitations set forth above) such defense, at its cost and expense. The 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 Indemnifying Party in any such action and to participate thereinParty, but it being understood, however, that 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 control such claim effected without its prior written consent, which shall not be unreasonably withheld; provided that if defense. If the Indemnifying Party does not assume chooses (subject to the limitations set forth above) to defend any Third-Party Claim, then the Parties shall cooperate in the defense or prosecution of such Third-Party Claim. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records that are reasonably relevant to such Third-Party Claim, and making employees available on a claim as mutually convenient basis to provide additional information and explanation of any material provided above hereunder. If the Indemnifying Party has not within thirty (30) days after notice thereofreceipt of an Indemnification Notice relating to a Third-Party Claim, chosen to assume defense of a Third-Party Claim, is not entitled to assume defense of a Third-Party Claim (as provided above) or fails to defend such Third-Party Claim actively and in good faith, then the Indemnified Party may shall (upon further written notice) have the right to defend and, subject to Section 6.5, compromise or settle such claim without Third-Party Claim or consent to the Indemnifying Party’s consent. The Indemnifying entry of judgment with respect to such Third-Party shall not agree to a settlement of any claim which provides for any relief other than Claim, in each case at 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 prior written consent. Whether or not the Indemnifying Party chooses to so defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof cost and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies expense of the Indemnifying Party.

Defense. If the facts pertaining relating to a loss Loss arise out of the claim of any third partya Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the “Indemnifying Party” may Indemnity Obligor shall, by giving written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, assume the defense or the prosecution thereof by prompt written notice to the Indemnified Partythereof, 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 Indemnifying Party Indemnity Obligor 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 the Indemnified Party's own expense. The Indemnifying , unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party shall not has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be liable 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 any settlement of any such claim effected without its prior written consentIndemnified Party to employ separate counsel, which shall not be unreasonably withheld; provided that if or (c) the Indemnifying Party does not Indemnity Obligor has failed to 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 action and employ counsel reasonably satisfactory 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 prior written consent. Whether or not the Indemnifying Party chooses to so defend Indemnity Obligor 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, testimony and shall attend such conferences, discovery proceedings, hearings, trials proceedings and appeals, trial as may be reasonably requested in connection therewith. The Indemnifying 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 all rights and remedies shall stand in the place of the Indemnifying 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 Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Entertainment Blvd. July 30, 1999 Page 4 Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Party.

Defense. If the facts pertaining to a an indemnification loss arise out of the claim of any third party, or if there is any claim against 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 “Indemnifying Party” may Party has the right, to be exercised by delivering written notice to the Indemnified Party within thirty (30) days of receipt of a Required Notice, to assume and control the defense or the prosecution thereof by prompt written notice to the Indemnified Partythereof, including the employment of counsel or accountants, at its cost and own expense. The Indemnified Party shall have assumption of the right to employ counsel separate from counsel employed 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 action 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 thereinin such defense or settlement through counsel chosen by the Indemnified Party, but with the fees and expenses of such counsel employed borne 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 prior written consent. Whether or not the 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Party.

Defense. If the facts pertaining to any action discussed in Section 10.5 is brought against an indemnified party by a loss arise out of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the LossThird Party, the “Indemnifying Party” may indemnifying Party will be entitled to participate in and to assume the defense or the prosecution thereof by prompt written notice thereof, with counsel reasonably acceptable to the Indemnified indemnified party, to the extent that it may wish, and after notice from the indemnifying Party to such indemnified party of the indemnifying Party’s election to assume the defense thereof, including the employment of counsel or accountants, at its cost and expense. The Indemnified Party indemnified party shall have the right to employ counsel separate from counsel employed by participate, at its own expense, in the Indemnifying Party in any such action and to participate therein, but the fees and expenses defense of such counsel employed by claim; provided that the Indemnified Party shall be at their expense. The Indemnifying indemnifying Party shall not be liable to such indemnified party for any settlement legal or other expenses subsequently incurred by the latter in connection with the defense thereof unless the indemnifying Party has failed to assume and diligently prosecute the defense of such claim. The indemnifying Party will keep the indemnified party reasonably informed of the status of any such Third Party action. Notwithstanding any of the 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 the indemnifying Party fails to assume and diligently prosecute such defense, the expenses of such defense to be paid by the indemnifying Party. As a condition to the indemnifying Party’s obligations hereunder, the indemnified party will in good faith cooperate with and assist the indemnifying Party in the prosecution or defense of such indemnified claim effected at no unreasonable expense to the indemnified party. No indemnifying Party shall consent to entry of any judgment or enter into any settlement or compromise with respect to a claim either (a) without its prior written consentthe consent of the indemnified party, which consent 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 (30b) days after notice thereofunless such judgment, 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 or compromise involves only the payment of monetary damages by the indemnifying Party (which monetary damages are less than or which could have equal to any cap applicable thereto), does not require any payment by or impose an injunction or other equitable relief or any other obligation upon the indemnified party and includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a material precedential impact or effect on the business or financial condition release from all liability with respect to such claim. No indemnified party shall consent to entry of any Indemnified Party judgment or enter into any settlement or compromise of any such action, the defense of which has been assumed and diligently pursued by an indemnifying Party, without the Indemnified consent of such indemnifying Party’s prior written consent. Whether or , which consent shall not the 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Partyunreasonably withheld.

Defense. If the facts pertaining relating to a loss Loss arise out of the claim of any third partya Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the “Indemnifying Party” may Indemnity Obligor shall, by giving written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, assume the defense or the prosecution thereof by prompt written notice to the Indemnified Partythereof, 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 Indemnifying Party Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel employed 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 counsel to each of the Indemnified Party and the Indemnity Obligor shall have advised such parties that representation of both parties by the same counsel would 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 inappropriate due to actual or potential differing interests between them or (c) the Indemnifying Party does not Indemnity Obligor has failed to 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 prior written consentaction. Whether or not the Indemnifying Party chooses to so defend Indemnity Obligor 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, testimony and shall attend such conferences, discovery proceedings, hearings, trials proceedings and appeals, trial as may be reasonably requested in connection therewith. The Indemnifying 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 all rights and remedies shall stand in the place of the Indemnifying 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 pertaining event any action, suit or proceeding (a "LEGAL ACTION") is brought against an indemnified party, with respect to a loss arise out which the indemnifying party may have liability under an indemnity agreement contained herein, the Legal Action shall, upon the written agreement of the claim of any third partyindemnifying 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 if there is any claim against a third party available by virtue of for review which counsel for the circumstances of the Loss, the “Indemnifying Party” may assume the defense or the prosecution thereof by prompt written notice to the Indemnified Party, including the employment of counsel or accountants, at its cost and expensedefendant shall deem appropriate. The Indemnified Party indemnified party shall have the right to employ be represented by counsel separate from counsel employed by the Indemnifying Party in any such action and to participate thereinaccountants, but the fees at its own expense, and expenses of such counsel employed by the Indemnified Party shall be kept fully informed as to such Legal Action at their expenseall stages thereof whether or not it is represented by its own counsel. The Indemnifying Party Until the indemnifying party shall have so assumed the defense of any Legal Action, or if the indemnified party shall have reasonably concluded that there are likely to be defenses available to the indemnified party that are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not be liable for any settlement entitled to assume the defense of such Legal Action but shall have the right to be represented by counsel and accountants, at its own expense, and shall be kept fully informed as to such Legal Action at all stages thereof whether or not represented by its own counsel), all legal or other expenses reasonably incurred by the indemnified party shall be borne by the indemnifying party. The indemnifying party shall make available to the indemnified party and its attorneys and accountants all books and records of the indemnifying party relating to such Legal Action and the parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to facilitate the proper and adequate defense 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 prior written consent. Whether or not the 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying PartyLegal Action.

Defense. If within 10 calendar days after an Indemnitee provides ------- Notice to the facts pertaining to a loss arise out of the claim Indemnifying Party of any third party, or if there is any claim against a third party available by virtue of the circumstances of the LossThird Party Claim, the “Indemnitee receives Notice from the Indemnifying Party” may Party that such Indemnifying Party has elected to assume the defense or the prosecution thereof by prompt written notice to the Indemnified Partyof such Third Party Claim, including the employment of counsel or accountants, at its cost and expense. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the 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 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 Third 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. If a firm offer is made to settle a Third Party Claim without its prior written consent, leading to liability or the creation of a financial or other obligation on the part of the Indemnitee for which shall the Indemnitee is not be unreasonably withheld; provided that if entitled to indemnification hereunder (or which would not impose any injunctive or other equitable remedy on the Indemnitee) and 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 desires to accept and 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 prior written consent. Whether or not such offer, the Indemnifying Party chooses will give Notice to so 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 or prosecute such claimThird Party Claim and, all in such event, the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies maximum liability of the Indemnifying PartyParty to such Third Party Claim will be the amount of such settlement offer, plus reasonable costs and expenses paid or incurred by the Indemnitee up to the date of such notice.

Defense. If the facts pertaining The procedures to a loss arise out 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 claim commencement of any third party, 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 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 immediately preceding sentence shall not result in a waiver of any right to indemnification hereunder except to the extent the Indemnifying Party is actually and materially prejudiced by reason of such failure or delay. The indemnifying Party may, at its own expense, assume and control the defense of any claim for which it has received notice in accordance with this Section 13.5 and notify the Indemnified Party 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 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 circumstances matters involved; provided, however, that no such settlement shall be made without the prior written consent of the Loss, the “Indemnifying Party” may assume the defense or the prosecution thereof by prompt written notice to the Indemnified Party, including which shall not be unreasonably withheld; (b) If the employment 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 or accountantschosen by it and approved by the Indemnifying Party, which approval shall 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 cost own expense. The Indemnifying Party shall be obligated to pay the reasonable attorneys' fees and expenseexpenses of the Indemnified Party to the extent 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 Indemnifying Party in any dispose of such action and to participate thereinenter into any monetary compromise or settlement; provided, but the fees and expenses of however, that no such counsel employed by the Indemnified Party settlement shall be at their expense. The Indemnifying Party shall not be liable for any settlement of any such claim effected made without its the prior written consentconsent of the Indemnifying Party, which shall not be unreasonably withheld; provided that if and (c) Both the Indemnifying Party does not assume the defense or prosecution of a claim as provided above within thirty (30) days after notice thereof, and the Indemnified Party may settle such claim without shall reasonably cooperate fully (but not including the Indemnifying Party’s consent. The Indemnifying Party shall not agree to a waiver of any privileged communication) with one another in connection with the defense, compromise or settlement of any such 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 prior written consent. Whether or not the 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Partyaction.

Defense. If In the facts pertaining event any person or entity not a party to this Agreement shall make a loss arise out demand or claim, file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, then the Indemnified Party shall promptly notify the Indemnifying Party of the demand, claim of any third party, or if there is any claim against a third party available by virtue lawsuit. Within fifteen (15) days after delivery of the circumstances Indemnification Notice to the Indemnifying Party of such demand, claim or lawsuit, except as provided in the Lossnext sentence, the “Indemnifying Party” may assume Party shall have the defense or the prosecution thereof by prompt written notice to the Indemnified Party, including the employment of counsel or accountantsoption, 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, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) 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 of counsel by 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 fifteen (15) days after delivery of the Indemnification Notice; then, the Indemnified Party shall have the right to employ retain its own counsel separate from counsel employed 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 action and demand, claim or lawsuit, shall consent to participate therein, but entry of any judgment or enter into any settlement without the fees and expenses consent of such counsel employed by the Indemnified Party shall be at their expenseParty. The In the event that 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 fail to respond within thirty (30) 15 days after notice thereofdelivery of the Indemnification Notice, 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 prior written consent. Whether or not the Indemnifying Party chooses to so defend or prosecute such claim, all the parties hereto shall cooperate in retain counsel and conduct the defense of such demand, claim or prosecution thereof and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appealslawsuit, as it may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights its sole discretion deem proper, at the sole cost and remedies 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 pertaining to a loss arise out immediately following sentence and the last sentence of the claim of any third partythis paragraph, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the “Indemnifying Party” may assume the defense or the prosecution thereof by prompt written notice of such Claim, with counsel 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, including the employment of counsel or accountants, at its cost and expense. The Indemnified any indemnified Party shall have the right to employ retain its own counsel separate from counsel employed by and participate in the Indemnifying Party in any defense of such action and to participate thereinClaim, but the fees and expenses expense of such counsel employed by the Indemnified Party shall be at their expensethe expense of such indemnified Party unless: (i) the 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 same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The Indemnifying indemnifying Party shall not be liable for any settlement of any such claim proceeding effected without its prior written consent, which shall not be unreasonably withheld; provided that but if settled with such consent or if there is a final judgment for the Indemnifying Party does not assume the defense or prosecution of a claim as provided above within thirty (30) days after notice thereofplaintiff, the Indemnified indemnifying Party may settle agrees to indemnify the indemnified Party from and against any Losses by reason of such claim settlement or judgment. No indemnifying Party shall, without the Indemnifying prior written consent of the indemnified Party’s consent. The Indemnifying Party shall not agree to a , effect any settlement of any claim pending or threatened proceeding in respect of which provides for 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 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 assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (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 Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or which could have a material precedential impact (cc) the indemnifying Party refuses or effect on the business or financial condition of any Indemnified Party without the Indemnified Party’s prior written consent. Whether or not the Indemnifying Party chooses fails to so defend or prosecute such claim, all the parties hereto shall cooperate in timely assume the defense of such Claim; or prosecution thereof and shall furnish such records(3) in case of Customer, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated pursuant to all rights and remedies of the Indemnifying PartySection 20.4.

Defense. If An indemnifying Party shall, except as provided in the facts pertaining to a loss arise out immediately following sentence and the last sentence of the claim of any third partythis paragraph, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the “Indemnifying Party” may assume the defense or the prosecution thereof by prompt written notice of such Claim, with counsel 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, including the employment of counsel or accountants, at its cost and expense. The Indemnified any indemnified Party shall have the right to employ retain its own counsel separate from counsel employed by and participate in the Indemnifying Party in any defense of such action and to participate thereinClaim, but the fees and expenses expense of such counsel employed by the Indemnified Party shall be at their expensethe expense of such indemnified Party unless: (i) the 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 same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The Indemnifying indemnifying Party shall not be liable for any settlement of any such claim proceeding effected without its prior written consent, which shall not be unreasonably withheld; provided that but if settled with such consent or if there is a final judgment for the Indemnifying Party does not assume the defense or prosecution of a claim as provided above within thirty (30) days after notice thereofplaintiff, the Indemnified indemnifying Party may settle agrees to indemnify the indemnified Party from and against any Losses by reason of such claim settlement or judgment. No indemnifying Party shall, without the Indemnifying prior written consent of the indemnified Party’s consent. The Indemnifying Party shall not agree to a , effect any settlement of any claim pending or threatened proceeding in respect of which provides for 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 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 assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (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 Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or which could have a material precedential impact (cc) the indemnifying Party refuses or effect on the business or financial condition of any Indemnified Party without the Indemnified Party’s prior written consent. Whether or not the Indemnifying Party chooses fails to so defend or prosecute such claim, all the parties hereto shall cooperate in timely assume the defense of such Claim; or prosecution thereof and shall furnish such records(3) in case of Customer, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated pursuant to all rights and remedies of the Indemnifying PartySection 20.4.

Defense. (i) If a Third Party Claim is made against an Indemnified Party, then the facts pertaining Indemnifying Party shall be entitled to a loss arise out participate in the defense of the claim Third Party Claim (with counsel of any third partyits own choosing) and, if both the amount that the plaintiff or if there claimant is any claim against a third party available by virtue seeking under such Third Party Claim is less than the then outstanding indemnification obligation of the circumstances 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 LossIndemnifying Party so chooses within 30 days of delivery of notice thereof, the “Indemnifying Party” may to assume the defense or of such Third Party Claim. (ii) If the prosecution thereof by prompt written notice Indemnifying Party elects to assume the defense of 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 PartyParty for legal expenses subsequently incurred by the Indemnified Party in connection with the defense of such Third Party Claim, including (C) the employment of counsel or accountants, at its cost and expense. 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 Indemnifying Party, it being understood, however, that the Indemnifying Party shall control such defense, and (D) the Parties shall cooperate in any such action and to participate therein, but the fees and expenses defense of such counsel employed by 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 shall be at their expense. The nor the Indemnifying Party shall not be liable for required to disclose any settlement privileged information or any attorney work-product in connection with the defense of any such claim effected without its prior written consentasserted Third Party Claim unless such disclosure is made pursuant to a joint defense agreement reasonably acceptable to both parties. (iii) If the Indemnifying Party has the right to assume the defense of a Third Party Claim under Section 8.4(b)(i) and, which shall within the time period set forth in Section 8.4(b)(i), does not be unreasonably withheld; provided that assume defense of such Third Party Claim or if the Indemnifying Party does not have the right to assume the defense or prosecution of a claim as provided above within thirty Third Party Claim under Section 8.4(b)(i), then (30A) days after notice thereof, the Indemnified Party may settle shall defend such claim without Third Party Claim actively and in good faith, (B) the Indemnifying Party’s consent. The Indemnifying Party shall not agree have the right to a settlement participate in the defense of any claim which provides for any relief other than such Third Party Claim and to employ counsel, at its own expense, separate from 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 counsel employed by the Indemnified Party’s prior written consent. Whether or not , it being understood, however, that the Indemnifying Indemnified Party chooses to so defend or prosecute 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 (upon the Indemnified Party’s request) the provision to the Indemnified 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 testimonyexplanation of any material, and attend such conferencesprovided, discovery proceedingshowever, hearings, trials and appeals, as may be reasonably requested in connection therewith. The that neither the Indemnified Party nor the Indemnifying Party shall be subrogated required to all rights and remedies disclose any privileged information or any attorney work-product in connection with the defense of any such asserted Third Party Claim 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 Indemnifying Party nor the Indemnified Party shall settle, or consent to the entry of judgment with respect to, any Third Party Claim without the prior written consent of the Indemnifying Partyother (which consent shall not be unreasonably withheld, conditioned or delayed).

Defense. If (a) Promptly after the facts pertaining receipt by any person entitled to a loss arise out indemnification under Section 5.1 and 5.2 of this Agreement of notice of (i) any claim or (ii) the claim commencement of any third partyaction or proceeding, or such party (the “Aggrieved Party”) will, if there claim with respect thereto is made against any claim against a third party available by virtue obligated to provide indemnification pursuant to Section 5.1 and 5.2 of the circumstances of the Loss, this Agreement (the “Indemnifying Party” may ”), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the prosecution thereof by prompt written notice to action or proceeding seeks an injunction or other similar relief against the Indemnified Party, including Aggrieved Party or there is a conflict of interest between it and the employment Indemnifying Party in the conduct of counsel or accountants, at its cost and expensethe defense of such action. The Indemnified Party shall have the right to employ counsel separate from counsel employed Failure by the Indemnifying Party in 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 participate thereinholding the Aggrieved Party harmless from and against any losses, but 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 fees and expenses defense of such counsel employed by claim or litigation provided that the Indemnified Indemnifying Party shall be at their expensedirect 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 be liable for any settlement assume the defense of any such claim effected 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 Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without its prior written consentthe consent of the Indemnifying Party, which consent shall not be unreasonably withheld; provided that if . If no settlement of the claim or litigation is made, the Indemnifying Party does not assume shall promptly reimburse the defense or prosecution Aggrieved Party for the amount of a claim as provided above within thirty (30) days after notice thereof, the Indemnified Party may settle any judgment rendered with respect to such claim without or in such litigation and of all expenses, legal or otherwise, as incurred by the Indemnifying Party’s consent. The Indemnifying Aggrieved 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 prior written consent. Whether or not the Indemnifying Party chooses to so defend or prosecute such claim, all the parties hereto shall cooperate in the defense against such claim or prosecution thereof and litigation. (d) The rights to indemnification hereunder shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated apply to all rights and remedies claims made by either party against the other whereby written notice of the Indemnifying Partyclaim has been made and delivered within the one-year period following the Closing Date unless otherwise provided herein.

Defense. If the facts pertaining to a loss arise out of the claim of Except as set forth in Section 11.5(d) hereof, if any third partyaction, suit or proceeding is commenced, or if there is any claim against or demand is asserted, by a third party available by virtue not Affiliated with any party hereto against a party hereto (the "Indemnitee") in respect of which the circumstances of the LossIndemnitee proposes to demand indemnification under Section 11.1 or 11.2 above, the “Indemnifying Party” may assume party from which indemnification is sought (the defense or the prosecution thereof by prompt written notice to the Indemnified Party, including the employment of counsel or accountants, at its cost and expense. The Indemnified Party "Indemnitor") shall have the right to employ assume the entire control thereof (including the selection of counsel separate from counsel employed by reasonably acceptable to the Indemnifying Party in any such action and Indemnitee), subject to the right of the Indemnitee to participate therein(with counsel of its choice reasonably acceptable to the Indemnitor but at the Indemnitee's expense) in the defense, but compromise or settlement thereof; provided, however, if the fees claim or demand is one for which both parties hereto are responsible, then both parties shall jointly assume the defense thereof with counsel reasonably acceptable to each party, and expenses neither party may compromise or settle such claim or demand without the other party's consent, which consent will not be unreasonably denied or withheld. The Indemnitee shall notify the Indemnitor at the earliest practical time after the Indemnitee becomes aware of the circumstance, event or activity which gives rise to the asserted obligation of indemnity, it being understood that failure to provide such notice shall not affect the Indemnitee's right to indemnification hereunder, except to the extent the Indemnitor shall have been prejudiced as a result of such counsel employed by failure (and the Indemnified Party shall be at their expense. The Indemnifying Party Indemnitor shall not be liable for any settlement attorney fees or expenses incurred during the period in which the Indemnitor shall have failed to give such notice). With respect to any actions, suits, proceedings, claims or demands as to which the Indemnitor shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of any and contest such claim effected without its prior written consentaction with counsel chosen by it and approved by the Indemnitor, which approval shall not be unreasonably withheld; provided that if , in which case the Indemnifying Party does not assume Indemnitor shall be entitled to participate in the defense of such action (the cost of such participation to be at its own expense) and the Indemnitor shall be obligated to pay the reasonable attorneys' fees and expenses of the Indemnitee to the extent that such fees and expenses relate to claims as to which indemnification is due under this Article XI and subject to the limitations contained in this Agreement. Both the Indemnitor and the Indemnitee shall cooperate fully in all respects with one another in any such defense, compromise or prosecution settlement, including, without limitation, by making available to the other all pertinent information and personnel under its direct or indirect control, and the parties agree that such cooperation will be carried out in a way so as not to waive any applicable or available attorney-client privilege, and the parties will take all measures to protect such privilege. Neither party shall compromise or settle any such action, suit, proceeding, claim or demand without prior written consent of a claim as provided above within thirty (30) days after notice thereofthe other party, the Indemnified Party may settle such claim without the Indemnifying Party’s consent. The Indemnifying Party which consent shall not agree to be unreasonably withheld or delayed, provided, however, that a party may so compromise or settle, after consultation with the other party, (i) if such compromise or settlement of any claim which provides for any relief other than involves solely the payment of monetary money damages and/or the granting of releases, provided that no such compromise, settlement or which could have release shall acknowledge liability for future acts or obligate any ▇▇▇▇▇▇▇▇ Indemnitee with respect to any post-Closing activities of the Business or, except for the Assumed Liabilities, obligate any Purchaser Indemnitee with respect to any pre-Closing activities of the Business, (ii) if all claimants provide a material precedential impact or effect on release (reasonably acceptable to such Indemnitees) in favor of Indemnitees, and (iii) if all claimants agree in writing to maintain the business or financial condition facts and circumstances of the settlement confidential to the extent permitted by applicable law). This Section 11.3 shall not apply to direct claims of any Indemnified Party without the Indemnified Party’s prior written consent. Whether ▇▇▇▇▇▇▇▇ Indemnitee against Purchaser or Silgan or of any Purchaser Indemnitee against ▇▇▇▇▇▇▇▇, that are not the 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Partybased upon claims asserted by third parties.

Defense. If In the facts pertaining to case of a loss arise out Claim involving the assertion of the a claim of any third party, or if there is any claim against by a third party available by virtue of the circumstances of the Loss(whether pursuant to a lawsuit or other legal action or otherwise, a “Third-Party Claim”), the “Indemnifying Party” may assume the defense or the prosecution thereof by prompt Party may, upon written notice to the Indemnified Party, including take control of the employment defense and investigation of counsel or accountants, at its cost and expense. The such Third-Party Claim if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such Third-Party Claim. If the Indemnifying Party assumes the defense of any such Third-Party Claim, the Indemnifying Party shall have select counsel reasonably acceptable to the right to employ counsel Indemnified Party (and separate from counsel employed by to the Indemnifying Party in if there is any such action conflict or divergence of interest between the Indemnifying Party and the Indemnified Party) to participate therein, but conduct the fees and expenses defense of such counsel employed by claims or legal proceedings and, at the Indemnified Party sole cost and expense of the Indemnifying Party, shall be at their expensetake all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not be liable for any consent to a settlement of or the entry of any judgment arising from any such claim effected Third-Party Claim without its the prior written consent, consent of the Indemnified Party (which consent shall not be unreasonably withheldwithheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such Third-Party Claim, with its own counsel and at its own expense; provided provided, however, that the Indemnified Party shall be entitled to settle any Third-Party Claim involving criminal penalties, civil fines or harm without the consent, but at the expense, of the Indemnifying Party if the Indemnifying Party shall unreasonably fail to do so after being requested to do so by the Indemnified Party. If the Indemnifying Party does not notify the Indemnified Party that it will assume the defense or prosecution of a claim as provided above such Third-Party Claim within thirty (30) days after the Indemnifying Party receives notice thereof, of such claim from the Indemnified Party: (a) the Indemnified Party may settle defend against such claim without Third-Party Claim in such manner as it may deem reasonably appropriate, provided that the Indemnifying Party’s consent. The Indemnifying Indemnified Party shall not agree consent to a settlement of any claim which provides for any relief other than or the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition entry of any Indemnified judgment arising from such Third-Party Claim without the Indemnified Party’s prior written consent. Whether or not consent of the Indemnifying Party chooses (which consent shall not be unreasonably withheld or delayed); and (b) the Indemnifying Party shall be entitled to so defend or prosecute such claim, all the parties hereto shall cooperate participate in (but not control) the defense or prosecution thereof of such action, with its counsel and at its own expense. Regardless of which Party shall furnish such recordsassume the defense of the Third-Party Claim, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested the Parties agree to cooperate fully with one another in connection therewith. The Indemnifying Such cooperation shall include the providing of records and information which are relevant to such Third-Party shall be subrogated Claim and making employees and officers available on a mutually convenient basis to all rights provide additional information and remedies explanation of any material provided hereunder and to act as a witness or respond to legal process, in each case to the Indemnifying Partyextent that the Party being requested to provide records and information or to make employees and officers available can do so without waiving any evidentiary privileges to which it is entitled.

Defense. If the facts pertaining to a loss arise out any of the claim of indemnified parties is made or threatened ------- to be made a defendant in or party to any action or proceeding, judicial or 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 such third party action or proceeding being referred to as an "Indemnification Claim"), the indemnified party or parties shall give prompt notice thereof to the indemnifying party; provided -------- that the failure to give such notice shall not affect the indemnified party or parties' ability to seek indemnification hereunder unless such failure has materially and adversely affected the indemnifying party or parties' ability to prosecute successfully an Indemnification Claim. Each indemnified party shall permit the indemnifying party, or if there is any claim against a third party available by virtue of the circumstances of the Lossat its own expense, the “Indemnifying Party” may to assume the defense or the prosecution thereof by prompt written notice to the Indemnified Party, including the employment of counsel or accountants, at its cost and expense. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the 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 or any litigation to which this Paragraph 18.4 may be applicable, by counsel reasonably satisfactory to the indemnified party or parties; provided, -------- that the indemnified party or parties shall be entitled at any time, at its prior written consent, or their own cost and expense (which expense shall not be unreasonably withheld; provided that if recoverable from the Indemnifying Party does indemnifying party unless the indemnifying party is not assume the defense or prosecution adequately representing or, because of a claim as provided above within thirty (30) days after notice thereofconflict of interest, may not adequately represent, the Indemnified Party may settle such claim without the Indemnifying Party’s consent. The Indemnifying Party shall not agree indemnified party or parties' interests), 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 prior written consent. Whether or not the Indemnifying Party chooses to so defend or prosecute participate in 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 elects to participate in such defense, such party or parties will cooperate with the indemnifying party in the conduct of such defense. The indemnified party or parties may not concede, settle or compromise any Indemnification Claim without the consent of the indemnifying party. The indemnifying party, in the defense of any such claim or prosecution 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 shall furnish complete release from all liability in respect to such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Partyclaim or litigation.

Defense. If In the facts pertaining event any Third Party makes 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 in the event that a loss arise out potential Loss comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event will promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the “Notice”) to an Indemnifying Party of any third partysuch demand, claim or if there is any claim against a third party available by virtue of lawsuit, except as provided in the circumstances of the Lossnext sentence, the “Indemnifying Party” may assume Party will 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 will conduct the defense of such demand, claim or the prosecution thereof lawsuit will be approved by prompt written notice to the Indemnified Party, which approval will not unreasonably be withheld. The Indemnified Party will have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (A)(i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party and (ii) the employment of counsel or accountants, at its cost and expense. The by such Indemnified Party shall has been authorized in writing by the Indemnifying Party, or (B) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party will have the right to employ retain its own counsel separate from counsel employed at the sole cost and expense of the Indemnifying Party, which costs and expenses will be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such action and demand, claim or lawsuit, will consent to participate therein, but entry of any judgment or enter into any settlement without the fees and expenses consent 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 consent will not be unreasonably withheld; provided . In the event that if the Indemnifying Party does not assume the defense or prosecution of a claim as provided above will fail to respond within thirty (30) twenty days after notice thereofreceipt of the Notice, the Indemnified Party may settle retain counsel and conduct the defense of such demand, claim without 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 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 prior written consent. Whether or not the 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Partyaction is prejudiced by such failure.

Defense. If the facts pertaining to a loss arise out of the claim of any claim, demand or liability is asserted by any third party, or if there is party against any claim against a third party available by virtue of the circumstances of the LossIndemnified Party, the “Indemnifying Party” may assume 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 or the prosecution thereof by prompt written notice subject to the Indemnified Party's approval in writing of outside counsel selected by the Indemnifying Party. After notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such claim or action, including the employment Indemnifying Party shall not be liable to the Indemnified Party under this Section 10 for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than reasonable costs of counsel or accountants, at its cost and expenseinvestigation. The In any action defended by the Indemnifying Party the Indemnified Party shall have the right to employ be represented by its own counsel separate from at its own expense unless (1) the employment of such counsel employed shall have been authorized in writing by the Indemnifying Party or (2) the Indemnifying Party shall not have properly employed counsel reasonably satisfactory to such Indemnified Party 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 that there may be one or more legal defenses available to it which are different from, or additional to, those available to the Indemnifying Party, and if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the 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 and to participate thereinor separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, but be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel for all such counsel employed by the Indemnified Party shall be at their expenseParties). The Indemnifying Party shall not be liable for any settlement of any such claim effected will not, without its prior Indemnified Party's written consent, which shall not be unreasonably withheld; provided that if settle or compromise any indemnifiable claim or consent to the Indemnifying Party does not assume the defense entry of any judgment in respect thereof unless such settlement, compromise or prosecution consent includes an unconditional release of a claim as provided above within thirty (30) days after notice thereof, the Indemnified Party may settle from all liability in respect of such claim without the Indemnifying Party’s consentIndemnifiable Claim. 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 prior written consent. Whether or not the 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as of all third party claims which may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated give rise to all rights and remedies of the Indemnifying PartyIndemnifiable Claims hereunder.

Defense. If Upon receipt of notice under Subsection (a) from the facts pertaining Indemnitee, the Indemnifying Party shall have the duty to a loss arise out either compromise or defend, at its own expense and by counsel (reasonably satisfactory to Indemnitee) such Action. The Indemnifying Party shall promptly (and in any event not more than twenty (20) days after receipt of the claim Indemnitee's original notice) notify the Indemnitee in writing that it wishes to assume control of the Action 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 Indemnifying Party of any third party, or if there is defenses it may assert against any Indemnified Party's claim against a third party available by virtue of for indemnification. Once the circumstances of the Loss, the “Indemnifying Party” may assume the defense or the prosecution thereof by prompt written Party gives such notice to the Indemnified PartyIndemnitee, including the employment Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or accountantsany other expenses subsequently incurred by the Indemnitee in connection with such defense, at its cost other than the Indemnitee's reasonable costs of investigation and expensecooperation. The Indemnified Party However, the Indemnitee shall have the right to employ separate counsel separate from and to control the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses of such counsel) if: (i) the use of the counsel employed chosen by the Indemnifying Party in any such action and to participate therein, but the fees and expenses of would present such counsel employed by with a conflict of interest; (ii) the Indemnified actual or potential defendants in, or targets of, such Action include both the Indemnifying Party shall and the Indemnitee, and the Indemnitee reasonably concludes that there may be at their expense. The legal defenses available to it that are different from or additional to those available to the Indemnifying Party (in which case the Indemnifying Party shall not be liable for any settlement have the right to assume the defense of any such claim effected without its prior written consent, which shall not be unreasonably withheld; provided that if Action on the Indemnitee's behalf); (iii) the Indemnifying Party does not assume employ counsel reasonably satisfactory to the defense or prosecution Indemnitee to represent the Indemnitee within a reasonable time after the Indemnitee's notice of a claim as provided above within thirty such Action; or (30iv) days after notice thereofin the reasonable opinion of counsel to the Indemnitee, the Indemnified Party may settle such claim without could result in the Indemnifying Party’s consent. The Indemnifying Party shall not agree Indemnitee becoming subject to a settlement of any claim which provides for any injunctive relief or relief other than the payment of monetary damages or which Losses that could have a material precedential impact or materially adverse effect on the ongoing business or financial condition of any Indemnified Party without the Indemnified Party’s prior written consent. Whether or not Indemnitee; provided, however, that in no event shall the Indemnifying Party chooses be obligated to so defend or prosecute such claimbear the fees, costs and expenses of more than one (1) separate counsel for all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying other Party's Indemnitees in such Action.

Defense. The Indemnifying Party shall have the right to direct, through counsel of its own choosing, the defense or settlement of any action or proceeding brought against the Indemnified Party in respect of Third Party Claims; provided, however, that the 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 or, regardless of the terms of such settlement, if the Indemnifying Party disputes its liability with respect to the Third Party Claim. If the facts pertaining Indemnifying Party elects to a loss arise out of 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 “Indemnifying Party” may assume the defense of any such claim or the prosecution thereof by prompt written notice to proceeding, the Indemnified Party, including the employment of counsel or accountants, Party may participate in such defense at its cost and own expense. The 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 of its own choosing, the 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 in and consent (which consent shall not be unreasonably withheld) to the settlement or assume or reassume the defense of such claim or proceeding. Notwithstanding the foregoing provisions of this Section 10.3(b), if the 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 the Indemnified Party's defense pursuant to this Section 10.3(b), and the indemnified Party shall reimburse the Indemnifying Party in full for all costs and expenses incurred by the Indemnifying Party in any connection with such action and to participate therein, but the fees and expenses of such counsel employed by the Indemnified Third Party shall be at their expenseClaim. 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 party directing the defense or prosecution of a claim as provided above within thirty (30) days after notice thereof, the Indemnified Party may settle shall pursue such claim without the Indemnifying Party’s consentdefense diligently and promptly. 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 prior written consent. Whether or not the Indemnifying Party chooses to so defend or prosecute such claim, all the parties hereto shall cooperate in the defense of all Third Party Claims. In connection with the defense of any Third Party 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 attend such conferences, discovery proceedings, hearings, trials and appeals, as may be other documents within its control that are reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies the course of the Indemnifying Partyor necessary or appropriate for such defense.

Defense. If In the facts pertaining event of a Third Party Claim, the indemnifying party shall either (A) acknowledge and agree in writing that the Third Party Claim is a Claim for which indemnified party has responsibility if such Claim is adversely determined pursuant to this Agreement, or (B) not make the election under (A) or make the election under (A) under a loss arise out reservation of rights without admitting that the Third Party Claim is a Claim for which indemnified party has responsibility if such Claim is adversely determined pursuant to this Agreement. In the event that the indemnifying party elects (A) above, it shall control the defense, compromise or settlement of such Third Party Claim, with counsel of its choice reasonably acceptable to the indemnified party and at the indemnifying party’s sole cost and expense, if the indemnifying party, if requested by the indemnified party, has provided evidence reasonably satisfactory to the indemnified party of the claim of indemnifying party’s financial ability to pay any third partyDamages resulting from the Third Party Claim; provided, or if there is any claim against a third however, that the indemnified party available may participate therein through separate counsel chosen by virtue of the circumstances of the Loss, the “Indemnifying Party” may assume the defense or the prosecution thereof by prompt written notice to the Indemnified Party, including the employment of counsel or accountants, it and at its sole cost and expense. The Indemnified If the indemnifying party does not elect pursuant to (A) above, then (xx) the Third Party Claim shall not be deemed to be a claim indemnified by the indemnifying party, and neither party shall have waived any rights to assert that the Third Party Claim is or is not properly a claim subject to the indemnifying party’s indemnity obligations, (yy) both the indemnifying party and the indemnified party may, at their individual elections, participate in the defense of such Third Party Claim, but the indemnifying party will remain responsible for the costs of defense, including reasonable attorneys’ fees of the indemnified party should the Third Party Claim ultimately be determined to be subject to the indemnifying party’s indemnity obligation; and (zz) the indemnified party shall have the right to employ counsel separate from counsel employed compromise and settle the Third Party Claim on any basis believed reasonable, in good faith, by the 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 prior written consent. Whether or not the 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 testimonyindemnified party, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may the indemnifying party will be reasonably requested in connection therewith. The Indemnifying bound thereby should the Third Party shall Claim ultimately be subrogated determined to all rights and remedies of the Indemnifying Partybe subject to indemnifying party’s indemnity obligation.

Defense. If any Proceeding referred to in Section 10.10.1 is brought against an indemnified party and it gives notice to the facts pertaining to a loss arise out indemnifying party of the commencement of such Proceeding, the indemnifying party will, unless the claim of any third partyis a Tax Claim, be entitled to participate in such Proceeding and, to the extent 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, or if there is any claim against a third (ii) the indemnifying party available by virtue fails to provide reasonable assurance to the indemnified party of the circumstances of the Lossits financial capacity to defend such Proceeding and provide indemnification with respect to such Proceeding), the “Indemnifying Party” may to assume the defense of such Proceeding with counsel satisfactory to the indemnified party and, after notice from the indemnifying party to the 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 any other expenses with respect to the prosecution thereof defense of such Proceeding, in each case subsequently incurred by prompt written 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 subject to indemnification; (ii) no compromise or settlement of such claims may be 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 full by the indemnifying party; and (iii) the indemnifying party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of the commencement of any Proceeding and the indemnifying party does not, within ten days after the indemnified party’s notice is given, give notice to the Indemnified Party, including the employment indemnified party of counsel or accountants, at its cost and expense. The Indemnified Party shall have the right election to employ counsel separate from counsel employed by the 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 thereofsuch Proceeding, the Indemnified Party may settle indemnifying party will be bound by any determination made in such claim without Proceeding or any compromise or settlement effected by 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 prior written consent. Whether or not the 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Partyindemnified party.

Defense. If Upon receipt of notice under Subsection (a) from the facts pertaining Indemnitee, the Indemnifying Party will have the duty to a loss arise out either compromise or defend, at its own expense and by counsel (reasonably satisfactory to Indemnitee), such Action. The Indemnifying Party will promptly (and in any event not more than twenty (20) days after receipt of the claim Indemnitee’s original notice) notify the Indemnitee in writing that it acknowledges its obligation to indemnify the Indemnitee with respect to the Action pursuant to this Article 10 and of any third party, its intention to either compromise or if there is any claim against a third party available by virtue of defend such Action. Once the circumstances of the Loss, the “Indemnifying Party” may assume the defense or the prosecution thereof by prompt written Party gives such notice to the Indemnified PartyIndemnitee, including the employment Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or accountantsany other expenses subsequently incurred by the Indemnitee in connection with such defense, at its cost other than the Indemnitee’s reasonable costs of investigation and expensecooperation. The Indemnified Party shall However, the Indemnitee will have the right to employ separate counsel separate from and to control the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses of such counsel) if: (i) the use of the counsel employed chosen by the Indemnifying Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the Indemnitee, and the Indemnitee reasonably concludes that there may be legal defenses available to it that are different from or additional to those available to the Indemnifying Party (in any such action and which case the Indemnifying Party will not have the right to participate therein, but assume the fees and expenses defense of such counsel employed by Action on 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 Indemnitee’s behalf); (iii) the Indemnifying Party does not assume employ counsel reasonably satisfactory to the defense or prosecution of a claim as provided above Indemnitee to represent the Indemnitee within thirty (30) days after the Indemnitee’s notice thereof, the Indemnified Party may settle of 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 prior written consent. Whether or not Action; or (iv) the Indemnifying Party chooses denies or fails to so timely admit its obligation to defend or prosecute and indemnify the Action; provided, however, that in no event shall the Indemnifying Party be obligated to bear the fees, costs and expenses of more than one (1) separate counsel for all of the other Party’s Indemnitees in such claimAction. In any event, all the parties hereto shall cooperate in Indemnitee may elect to be represented by separate counsel, at its expense; provided, that the Indemnifying Party retains control of the defense or prosecution thereof and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, except as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Partyprovided above.

Defense. If any claim, demand or liability is asserted by any third party against any Indemnified Party, the facts pertaining to a loss arise out Indemnifying Party shall have the right and shall upon the written request of the claim Indemnified Party, defend any Actions brought against the Indemnified Party in respect of any third partyIndemnifiable Claims with counsel of its choice reasonably acceptable to the Indemnified Party and, or if there is any claim against in the case of a third party available by virtue Tax-related Action, tax advisors of the circumstances of the Loss, the “Indemnifying Party” may assume the defense or the prosecution thereof by prompt written notice its choice reasonably acceptable to the Indemnified Party. In any such action or proceeding, including the employment of counsel or accountants, at its cost and expense. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate thereinretain its own counsel, but the fees and expenses of such counsel employed by shall be at its own expense unless (a) the Indemnifying Party and the Indemnified Party mutually agree in writing to the retention of such counsel, or (b) the named parties to any such suit, action or proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, and in the reasonable judgment of the Indemnified Party, representation of the Indemnifying Party and the Indemnified Party by the same counsel would be inadvisable due to potential conflicts of interests between them. The Parties shall cooperate and may participate in the defense of all third-party claims which may give rise to Indemnifiable Claims hereunder. If the Indemnifying Party assumes the defense (i) it shall be at their expense. The 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 shall assumed the defense pursuant to clause (a) above and not be liable for any clause (b); and (ii) no compromise or settlement of any such claim claims may be effected by the Indemnifying Party without its prior the Indemnified Party's written consent, 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 if 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 not, within twenty (20) days after the Indemnified Party's written notice is given, give written notice to the Indemnified Party of its election to assume the defense or prosecution of a claim as provided above within thirty (30) days after notice thereofsuch Action, 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 prior written consent. Whether or not the 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated bound by any determination made in such Action or any compromise or settlement effected by the Indemnified Party. In connection with the defense of any claim, each Party shall make available to all rights and remedies the Party controlling such defense, any books, records or other documents within its control that are reasonably requested in the course of the Indemnifying Partyor necessary or appropriate for such defense.

Defense. If OF CLAIMS -- The Company shall be entitled to participate in the facts pertaining to a loss arise out of the claim defense of any third party, Indemnifiable Claim or if there is any claim against a third party available by virtue of the circumstances of the Loss, the “Indemnifying Party” may to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee; provided, however, that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with an actual or potential conflict, (b) the prosecution thereof by prompt written notice named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee shall conclude that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Indemnified PartyCompany or (c) any such representation by such counsel would be precluded under the applicable standards of professional conduct then prevailing, including then Indemnitee shall be entitled to retain separate counsel (but not more than one law firm plus, if applicable, local counsel with respect to any particular Indemnifiable Claim) at the employment of counsel or accountants, at its cost and Company's expense. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the 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 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 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 solely involves the payment of monetary damages or which could have money and includes a material precedential impact or effect complete and unconditional release of Indemnitee from all liability on any claims that are the business or financial condition subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee shall unreasonably withhold its consent to any Indemnified Party without the Indemnified Party’s prior written consent. Whether or proposed settlement; provided, however, that Indemnitee may withhold consent to any settlement that does not the Indemnifying Party chooses to so defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof provide a complete and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies unconditional release of the Indemnifying PartyIndemnitee.

Defense. If the facts pertaining relating to a loss Loss or Company Loss arise out of the claim of any third partya 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 “Indemnifying Party” may Indemnity Obligor shall, by giving written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, assume the defense or the prosecution thereof by prompt written notice to the Indemnified Partythereof, 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 or Company Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party Indemnity Obligor 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 the Indemnified Party's own expense. The Indemnifying , unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party shall not has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be liable 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 any settlement of any such claim effected without its prior written consentIndemnified Party to employ separate counsel, which shall not be unreasonably withheld; provided that if or (c) the Indemnifying Party does not Indemnity Obligor has failed to 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 action and employ counsel reasonably satisfactory 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 prior written consent. Whether or not the Indemnifying Party chooses to so defend Indemnity Obligor 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, testimony and shall attend such conferences, discovery proceedings, hearings, trials proceedings and appeals, trial as may be reasonably requested in connection therewith. The Indemnifying 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 all rights and remedies shall stand in the place of the Indemnifying 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 pertaining Indemnifying Party under such Section, shall provide the Indemnifying Party with written particulars thereof; provided that failure to a loss arise out provide the Indemnifying Party with such particulars shall not relieve such Indemnifying Party from any liability which it might have on account of the claim 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 progress thereof and will discuss with the Indemnifying Party all significant actions proposed. An Indemnifying Party shall be entitled, at its own expense, to participate in (and, to the extent that it may wish, to assume) the defence of any third partysuch action, suit, proceeding or if there is any claim against a third party available but such defence shall be conducted by virtue counsel of good standing approved by the circumstances Indemnified Party, such approval not to be unreasonably withheld. Upon the Indemnifying Party notifying the Indemnified Party of its election so to assume the Lossdefence and retaining such counsel, the “Indemnifying Party shall not be liable to the Indemnified Party 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 Indemnifying Party” may assume , it shall, through the defense or the prosecution thereof by prompt written notice course thereof, provide copies of all relevant documentation to the Indemnified Party, including the employment of counsel or accountants, at its cost and expense. The keep such Indemnified Party advised of the progress thereof and shall have discuss with the right to employ counsel separate from counsel employed Indemnified Party all significant actions proposed. No Indemnifying Party shall 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 in any such action and to participate thereinParty, 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 made without its prior written consent, which but such consent shall not be unreasonably withheld; provided that . Notwithstanding the foregoing, an Indemnified Party shall have the right, at the Indemnifying Party's expense, to employ counsel of its own choice in respect of the defence of any such action, suit, proceeding or claim if (a) the employment of such counsel has been authorized by the Indemnifying Party does not assume in connection with such defence; or (b) counsel retained by the defense Indemnifying Party or prosecution of a claim as provided above within thirty (30) days after notice thereof, the Indemnified Party shall have advised the Indemnified Party that there may settle such claim without be legal defences available to it which are different from or in addition to those available to the Indemnifying Party’s consent. The Party (in which event and to that extent, the Indemnifying Party shall not agree have the right to a settlement assume or direct the defence on behalf 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 prior written consent. Whether ) or not that there may be a conflict of interest between the Indemnifying Party chooses to so defend and the Indemnified Party; or prosecute such claim, all (c) the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights not have assumed such defence and remedies employed counsel therefor within a reasonable time after receiving notice of the Indemnifying Partysuch action, suit, proceeding or claim.

Defense. If the facts pertaining to a loss arise out of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the LossExcept as otherwise provided herein, the “Indemnifying Party may elect to compromise or defend, at such Indemnifying Party” may assume the defense or the prosecution thereof 's own expense and by prompt written notice such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), including any Third Party Claim. If the employment Indemnifying Party elects to compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of counsel or accountantsthe Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, 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 cost 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 and expense(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. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon the written advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the 57 Indemnified Party in the conduct of the defense of such Third Party Claim or (y) there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, then the Indemnified Party shall have the right to employ counsel separate from counsel employed by assume and direct the defense and compromise of such Third Party Claim. In such an event, the Indemnifying Party in any such action and to participate therein, but shall indemnify the Indemnified Party for the fees and expenses disbursements of such counsel employed by to each of the Indemnifying Party and the Indemnified Party. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party shall be at their expense. The Indemnifying may settle or compromise any claim (unless the sole relief payable to a third party in respect of such Third Party shall not be liable for any Claim is monetary damages that are paid in full by the party settling or compromising such claim) over the objection of the other; PROVIDED, HOWEVER, that consent to settlement of any such claim effected without its prior written consent, which or compromise shall not be unreasonably withheld; . In any event, except as otherwise 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 thereofherein, the Indemnified Party may settle such claim without and the Indemnifying Party’s consentParty may each participate, at its own expense, in the defense of such Third Party Claim. 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 prior written consent. Whether or not If the Indemnifying Party chooses to so defend or prosecute such any claim, all the parties hereto Indemnified Party shall cooperate 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 this paragraph (b), in the event prompt action is required with respect to the defense or prosecution thereof of a Third Party Claim, the Indemnified Party shall, subject to the terms and shall furnish conditions of this Article X, have the right to assume the defense of such recordsThird Party Claim; PROVIDED, information and testimonyHOWEVER, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested that in connection therewith. The 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 to all rights applicable and remedies of the Indemnifying PartyParty shall, subject to the terms and conditions of this Article X, indemnify the Indemnified Party for any costs and expenses incurred by the Indemnified Party prior to the date the Indemnifying Party assumes control of such Third Party Claim.

Defense. If In the facts pertaining event any Third Party shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters covered by the indemnity under this Agreement, or in the event that a loss arise out potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within thirty (30) days after written notice by the Indemnified Party (the “Notice”) to an Indemnifying Party of any third partysuch demand, claim or if there is any claim against a third party available by virtue of lawsuit, except as provided in the circumstances of the Lossnext sentence, the “Indemnifying Party” may assume Party shall have the defense or the prosecution thereof by prompt written notice to the Indemnified Party, including the employment of counsel or accountantsoption, at its sole cost and expense, to retain counsel to defend any such demand, claim or lawsuit; provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, if (i) the named parties to any such proceeding (including any interpleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, which authorization will not be unreasonably withheld, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to employ retain its own counsel separate from counsel employed 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 action 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 chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to participate thereinassert those defenses, but then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of such any counsel employed retained by the Indemnified Party shall be at their expenseto undertake the defense. The In the event that 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 fail to respond within thirty (30) days after notice thereofreceipt of the Notice, the Indemnified Party may settle retain counsel and conduct the defense of such demand, claim without 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 Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party’s consentdefense of the action is actually prejudiced by such failure. The Indemnifying Party shall not agree to a settlement assumption 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 prior written consent. Whether or not the 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 recordsthe non-assumption of the defense, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The by the purported Indemnifying Party shall be subrogated will not affect such party’s right to all rights and remedies of the Indemnifying Partydispute its obligation to provide indemnification hereunder.

Defense. If the facts pertaining matter with respect to which a loss arise out of Party seeks indemnification (the "Indemnitee") involves a claim of any asserted against the Indemnitee by a third party, or if there is any claim against a third party available promptly after receipt by virtue the Indemnitee of notice of the circumstances commencement of any action, it will notify the other Party (the "Indemnitor") in writing of the Losscommencement thereof but the omission so to notify the Indemnitor will not relieve the Indemnitor from any liability which it may have to the Indemnitee unless the Indemnitor is prejudiced by such omission. In case any such action shall be brought against the Indemnitee and it shall notify the Indemnitor of the commencement thereof, the “Indemnifying Party” Indemnitor shall be entitled to participate in, and, to the extent that it may wish to assume the defense or the prosecution thereof by prompt written notice thereof, with counsel satisfactory to the Indemnified PartyIndemnitee, including and after notice from the Indemnitor to the Indemnitee of its election to assume the defense thereof, the Indemnitor shall not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof unless (i) the Indemnitee shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to this sentence, (ii) the Indemnitor shall not have employed counsel reasonably satisfactory to the Indemnitee to represent the Indemnitee within a reasonable time, (iii) the Indemnitor and its counsel do not actively and vigorously pursue the defense of such action, or (iv) the Indemnitor has authorized the employment of counsel or accountantsfor the Indemnitee at the expense of the Indemnitor; provided, at its cost and expense. The Indemnified Party however, that the Indemnitee shall have the right to employ counsel to represent it if, in its reasonable judgment, it is advisable for it to be represented by separate from counsel employed by because separate defenses are available, or because a conflict of interest exists between the Indemnifying Party Indemnitee and the Indemnitor in any respect to such action claim, and to participate therein, but in such event the fees and expenses of such separate counsel employed shall be paid by the Indemnified Party Indemnitor. In such circumstance, the Indemnitee shall be at their expensedesignate the counsel. The Indemnifying Party shall Indemnitor will not be liable to the Indemnitee 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 action 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 consentconsent of the Indemnitor and the Indemnitor may not unreasonably withhold its consent to any settlement. The Indemnifying Party shall Indemnitor will not agree consent to a entry of any judgment or enter into any settlement of or compromise any claim which provides for any relief other than does not include as an unconditional term thereof the payment giving by the claimant or plaintiff to the Indemnitee of monetary damages a full release from all liability with respect to such claim 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 prior written consent. Whether or not the 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Partylitigation.

Defense. If the facts pertaining (i) Within thirty (30) days after delivery of an Indemnification Notice with respect to a loss arise out of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the LossThird Party Claim, the “Indemnifying Party” may assume the defense or the prosecution thereof by prompt Party may, upon written notice thereof to the Indemnified Party, including assume control of the employment defense of such Third Party Claim with counsel 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 accountantsdifferent 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 expenseown expense (except to the extent otherwise contemplated by the preceding sentence), it being understood, however, that the Controlling Party shall control such defense in all respects. The Controlling Party shall keep the Non-controlling Party advised of the status of such Third Party Claim and the defense thereof and shall consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Controlling Party and the Non-controlling Party shall reasonably cooperate in the defense, prosecution and/or settlement of any Third Party Claim, which cooperation shall include the retention and (upon the Controlling Party’s request) the provision to the Controlling Party of records that are reasonably relevant to such Third Party Claim and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any Third Party Claim unless (A) such settlement or judgment (i) is solely for money damages and the Indemnifying Party agrees to pay all such money damages, (2) includes a complete and unconditional release of the Indemnified Party and its Affiliates from further Liability, (3) involves no admission of wrongdoing by the Indemnified Party or any of its Affiliates and (4) excludes any injunctive or non-monetary relief applicable to the Indemnified Party or any of its Affiliates or (B) the Indemnified Party consents thereto. If the Indemnifying Party is not permitted to under the terms of this Agreement, chooses not to, or does not, assume the defense of 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 entry of judgment with respect to such Third Party Claim at the expense of the Indemnifying Party in any such action and to participate thereinParty; provided, but the fees and expenses of such counsel employed by however, the Indemnified Party shall be at their expense. The Indemnifying not compromise or settle such Third Party shall not be liable for any settlement Claim or consent to the entry of any judgment with respect to such claim effected Third Party Claim without its the prior written consentconsent of the Indemnifying Party, which consent shall not be unreasonably withheld; provided that if the Indemnifying Party does not assume the defense , conditioned 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 prior written consent. Whether or not the 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Partydelayed.

Defense. If In the facts pertaining to a loss arise out case of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the Lossclaim, the “Indemnifying Party” Party may assume participate in the defense or thereof and, if it so chooses and acknowledges its obligation to indemnify the prosecution thereof by prompt written notice Indemnified Party therefore, control the defense of an Indemnifiable Claim with counsel reasonably satisfactory to the Indemnified Party. In all cases, including the employment of counsel or accountants, at its cost and expense. The Indemnified Party shall have party without the right to employ counsel separate from counsel employed by control the defense of the Indemnifiable Claim may participate in the defense at its own expense. In the case of a third party claim, the Indemnifying Party in any such action shall inform the Indemnified Party within 14 days of receiving the written notice seeking indemnification whether the party elects to control the defense and acknowledges its obligation to participate therein, but indemnify the Indemnified Party therefor. The Indemnifying Party shall be liable for the reasonable fees and expenses of such counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof, provided that it either acknowledges in writing its indemnity obligations with respect to the Indemnity Claim or it is determined by a court of competent jurisdiction that it is obligated hereunder to provide such indemnification. If the Indemnifying Party disputes its liability with respect to a potential Indemnifiable Claim or the amount thereof (whether or not it desires to defend the Indemnified Party against a third party claim), the parties shall be at their expenseendeavor in good faith to settle such dispute. The Indemnifying Party shall not be liable for any settlement of any such settle or compromise a third party claim effected or legal proceeding without its the prior written consentconsent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided that such prior written consent shall not be required with respect to any Indemnifiable Claim that is an Excluded Liability, except that any Indemnifiable Claim relating to Hazardous Substances remain subject in all respect to the terms of Section 5.18. The Indemnified Party shall not settle or compromise a third party claim for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld; provided that if , conditioned or delayed. If the Indemnifying Party does not assume the defense of any third party claim or prosecution of a claim as provided above litigation resulting therefrom within thirty (30) 14 days after the date it receives notice thereofof such claim from the Indemnified Party, the Indemnified Party may settle defend against such claim without or litigation in such manner as it may deem appropriate, including settling such claim or litigation, after giving notice to the Indemnifying Party’s consent, on such terms as the Indemnified Party may deem appropriate. The Indemnifying Party shall not agree Notwithstanding anything in this Section 9.3 to a 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 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 claim which provides for any relief such Indemnifiable Claim and how such defense and settlement will be handled, (C) cooperate with each 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 prior written consent. Whether or not the 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 settlement of such recordsIndemnifiable Claim and the exchange of information relevant thereto, information (D) unless otherwise agreed, share the out-of-pocket costs of such defense and testimonysettlement (including the costs of investigation, response and mitigation) equally until the parties' respective rights to indemnification for such costs are resolved, and attend (E) treat the defense and settlement of such conferencesIndemnifiable Claim as a joint and common defense pursuant to the Joint Defense and Common Interest Agreement dated as of October 8, discovery proceedings, hearings, trials and appeals2003, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights amended, between Dynegy and remedies of the Indemnifying PartyExelon.

Defense. If the facts pertaining any Indemnified Party learns of any matter which may give rise to a loss arise out claim for indemnification against an Indemnifying Party under this Article XI, then the Indemnified Party shall notify the Indemnifying Party thereof promptly and in any event within five (5) Business Days after receiving any written notice from a third party; provided, however, that no delay on the part of the claim of Indemnified Party in notifying the Indemnifying Party shall relieve the Indemnifying Party from any third partyobligation hereunder unless, or if there and then solely to the extent that, the Indemnifying Party is any claim against a third party available by virtue materially prejudiced thereby. Once the Indemnified Party has given notice of the circumstances of matter to the LossIndemnifying Party, the “Indemnified Party may, subject to the Indemnifying Party” may 's rights to assume the defense or thereof, defend against the prosecution thereof by prompt written 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 of its choice reasonably satisfactory to the Indemnified Party. Notwithstanding the foregoing, including the employment of counsel or accountants, at its cost and expense. The Indemnified Party shall have the right to employ its own counsel separate from counsel employed by the Indemnifying Party 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 unless (i) the employment of such counsel shall have been authorized in writing by the Indemnifying Party, (ii) the Indemnifying Party shall not have employed by 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 shall have reasonably concluded that there are defenses available to it that are different from or additional to those available to one or more of the Indemnifying Parties (in which case the Indemnifying Parties shall not have the right to direct the defense of such action on behalf of the Indemnified Party with respect to such different defenses), in any of which events such fees and expenses shall be borne by the Indemnifying Party. Assumption of the defense of any matter by the Indemnifying Party shall not prejudice the right of the Indemnifying Party to claim at their expensea later date that such third party action is not a proper matter for indemnification pursuant to this Article XI. The Indemnified Party shall not consent to the entry of a judgment or enter into any settlement with respect to any matter which may give rise to a claim for indemnification without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. The Indemnifying Party shall not be liable 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 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 include a provision whereby the defense plaintiff or prosecution of a claim as provided above within thirty (30) days after notice thereof, claimant in the matter releases the Indemnified Party may settle such claim from all Damages with respect thereto, without the Indemnifying Party’s consent. The Indemnifying Party shall not agree to a settlement written consent 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 prior written consent. Whether (not to be unreasonably withheld or not the 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Partydelayed).

Defense. If the facts pertaining to a loss arise out of the claim of any third party, or if there is any claim against by a third party available by virtue (a "Third Party Claim") is made ------- ----------------- against an SFI Indemnitee arising out of a matter for which the circumstances of the LossSFI Indemnitee is entitled to be indemnified pursuant to Section 5 hereof, the “Indemnifying Party” Preferred Shareholders may elect to assume the defense or the prosecution thereof thereof. The Preferred Shareholders shall have 30 days (which shall be shortened to 15 days in the case of a commenced lawsuit or proceeding) after receipt of a Notice of Claim to undertake to conduct and control, through counsel of their own choosing as designated by prompt written notice to the Indemnified Party, including the employment of counsel or accountants, Shareholder Representative and at its cost their sole risk and expense. The Indemnified Party , the good faith settlement or defense of such claim, and the SFI Indemnitee(s) shall have cooperate fully with the right Preferred Shareholders in connection therewith; provided that the SFI Indemnitee(s) shall be entitled to employ -------- participate in such settlement or defense through counsel separate from counsel employed chosen by the Indemnifying Party in any such action and to participate thereinit, but provided that the fees and expenses of such counsel employed shall be borne 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 withheldSFI Indemnitee(s); and provided further that if the Indemnifying Party does not Preferred Shareholders can only assume the defense if (a) the amount of the Third Party Claim does not exceed the amount of the Escrow Funds held hereunder or prosecution (b) the Preferred Shareholders provide commercially reasonable evidence that the Preferred Shareholders will have sufficient financial resources to defend the claim and satisfy their indemnification obligations. During the interim the SFI Indemnitee shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the alleged Loss. The Preferred Shareholders shall obtain the written consent of a claim as provided above within thirty (30) days after notice thereofthe SFI Indemnitee prior to ceasing to defend, the Indemnified Party may settle settling or otherwise disposing of such claim without if as a result thereof the Indemnifying Party’s consent. The Indemnifying Party shall not agree SFI Indemnitee would become subject to a settlement of any claim which provides for any injunctive, declaratory or other equitable 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 the SFI Indemnitee would be materially adversely affected in any Indemnified Party without the Indemnified Party’s prior written consentmanner. Whether or not the Indemnifying Party chooses Preferred Shareholders choose so 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, hearings, proceedings and trials and appeals, as may be reasonably requested in connection therewith. Such cooperation shall include the retention and the provision of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information. The Indemnifying Party Preferred Shareholders shall not be liable for any settlement of any such claim effected without their prior written consent, which shall not be unreasonably withheld. However, if the Preferred Shareholders, fail to defend such claim within the time period necessary to preserve the rights and defense of the SFI Indemnitee, the SFI Indemnitee will have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the Preferred Shareholders, subject to the right of the Preferred Shareholders to assume the defense of such claim at any time within the 30-day time period after receiving Notice of Claim. If a claim is based on any suit or proceeding by a third party for infringement which gives rise to an IP Claim (defined in Section 5) resulting in SFI's use of the Software (defined in Section 2.14 of the Merger Agreement) being enjoined or otherwise restricted, the Preferred Shareholders, if the Preferred Shareholders elect through the Shareholder Representative to assume defense of such proceeding after receiving notice hereunder, shall be subrogated entitled at their sole expense to all rights and remedies do any of the Indemnifying Partyfollowing: (i) procure for SFI, Clarus CSA, Inc. and their licensees the unrestricted right to continue using the Software, (ii) modify the Software so that it becomes noninfringing, (iii) settle the third party's infringement claim in a manner that gives SFI, Clarus CSA, Inc. and their licensees the unrestricted rights to the software being enjoined or otherwise restricted, or (iv) pay the indemnified party's claim as provided in this Agreement, provided that any settlement under this sentence shall require SFI's prior written approval which shall not be unreasonably withheld. SFI shall comply with any settlement or court order made in connection with such proceeding in the foregoing sentence provided that such compliance by SFI shall not limit the Preferred Shareholder's indemnification obligations hereunder. No Preferred Shareholder shall be liable for any settlement of any such claim effected without its prior written consent, which shall not be unreasonably withheld. Before any claim may be brought against any of the Preferred Shareholders hereunder, or under the Merger Agreement, all the Escrow Funds shall be used first to pay any claims made under Article IX of the Merger Agreement or this Agreement, and SFI hereby authorizes the Preferred Shareholders to settle such claims without consent of SFI to the extent the Escrow Funds will fully satisfy such claim. Preferred Shareholders may also settle any claim for which they are liable hereunder without consent of SFI so long as the payment or performance does not either (y) exhaust the Escrow Funds or (y) exceed the maximum liability amounts set forth below. Settlements requiring performance or payment in excess of the maximum liability amounts shall require SFI's prior written consent.

Defense. If With respect to any Proceeding as to which Indemnitee notifies the facts pertaining to a loss arise out Company of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the Losscommencement thereof, the “Indemnifying Party” Company may participate in the Proceeding at the Company’s own expense. The Company may also, if the Company so elects, assume the defense of any such Proceeding with counsel reasonably satisfactory to Indemnitee except (i) a Proceeding brought by or on behalf of the prosecution thereof Company, (ii) a Proceeding in which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding, (iii) a Proceeding continuing or commenced after a Change in Control (other than a Change in Control approved by prompt written a majority of the directors on the Board who were directors immediately prior to such Change in Control) in which Independent Counsel approves Indemnitee’s providing Indemnitee’s own defense with counsel selected by Indemnitee, or (iv) a Proceeding in which the Company shall not in fact have employed counsel to assume the defense of such Proceeding. A Proceeding, the defense of which is properly assumed by the Company pursuant to this Section 6(b), is referred to as an “Authorized Assumed Proceeding,” and any Proceeding, the defense of which cannot be assumed or continued by the Company because it is a Proceeding described in clauses (i), (ii), (iii), or (iv) of the preceding sentence, is referred to as a “Non-Authorized Proceeding.” All Expenses of an Authorized Assumed Proceeding shall be borne by the Company. After notice from the Company to Indemnitee of the Indemnified PartyCompany’s election to assume the defense of an Authorized Assumed Proceeding, including the employment Company shall not be liable to Indemnitee under this Agreement or otherwise for any Expenses subsequently paid or incurred by Indemnitee in connection with the defense of counsel or accountants, at its cost such Authorized Assumed Proceeding other than reasonable costs of transition and expenseinvestigation. The Indemnified Party Indemnitee shall have the right to employ legal counsel separate from counsel employed by the Indemnifying Party in any such action and to participate thereinan Authorized Assumed Proceeding, but all Expenses related thereto incurred after notice from the fees and expenses Company of such counsel employed by the Indemnified Party Company’s assumption of the defense of an Authorized Assumed Proceeding shall be at their Indemnitee’s expense. The Indemnifying Party Indemnitee shall not be liable entitled to receive Expense Advances and to be indemnified 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 all Expenses paid or prosecution incurred by Indemnitee related to or arising out of a claim Non-Authorized Proceeding 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 prior written consent. Whether or not the 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Partythis Agreement.

Defense. Promptly after receipt by an Indemnified Person of notice of any claim or demand or the commencement of any suit, action or proceeding by any third party with respect to which indemnification may be sought hereunder, such Indemnified Person shall notify in writing the Indemnitor of such claim or demand or the commencement of such suit, action or proceeding, but failure so to notify the Indemnitor shall not relieve the Indemnitor from any liability which the Indemnitor may have hereunder or otherwise, unless the Indemnitor shall be actually prejudiced by such failure. If the facts pertaining to a loss arise out of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the LossIndemnitor shall so elect, the “Indemnifying Party” may Indemnitor shall assume the defense of such claim, demand, action, suit or the prosecution thereof by prompt written notice to the Indemnified Partyproceeding, including the employment of counsel reasonably satisfactory to such Indemnified Person, and shall pay the fees and disbursements of such counsel. In the event, however, that such Indemnified Person shall reasonably determine that having common counsel would present such counsel with a conflict of interest or accountantsalternative defenses shall be available to an Indemnified Person or if the Indemnitor shall fail to assume the defense of the claim, at its cost demand, action, suit or proceeding in a timely manner, then such Indemnified Person may employ separate counsel to represent or defend such Person against any such claim, demand, action, suit or proceeding and expensethe Indemnitor shall pay the reasonable fees and disbursements of such counsel; provided, however, that the Indemnitor shall not be required to pay the fees and disbursements of more than one separate counsel for all Indemnified Persons in any jurisdiction in any single action, suit or proceeding. The For any claim, demand, action, suit or proceeding the defense of which the Indemnitor shall assume, the Indemnified Party Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action participate therein and to participate thereinretain its own counsel at such Indemnified Person's own expense (except as otherwise specifically provided in this Section 12.4), but the fees and expenses of so long as 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 participation does not assume interfere with the defense or prosecution Indemnitor's control 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 prior written consent. Whether or not the Indemnifying Party chooses to so defend or prosecute such claim, all demand, action, suit or proceeding. The Indemnitor shall not, without the parties hereto shall cooperate prior written consent of the Indemnified Person, settle or compromise or consent to the entry of any judgment in the defense any pending or prosecution thereof and shall furnish such recordsthreatened claim, information and testimonyaction, and attend such conferences, discovery proceedings, hearings, trials and appeals, as suit or proceeding in respect of which indemnification may be reasonably requested sought hereunder unless such settlement, compromise or consent shall include an unconditional release of such Indemnified Person from all liability arising out of such claim, demand, action, suit or proceeding and would not prohibit, restrict or impair the Indemnified Person from engaging in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Partyany business.

Defense. If With respect to any Proceedin▇, ▇▇▇▇ath RentCorp will be entitled to participate in the facts pertaining Proceeding at ▇▇▇ ▇▇n expense. Except as otherwise provided below, to a loss arise out the extent McGrath RentCorp so desires, it may, upon delivery of the claim of any third partywritten notice ▇▇ ▇▇▇▇xx, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the “Indemnifying Party” may assume the defense of any Proceeding with counsel reasonably satisfactory to Xxxxxx. However, 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 thereof by prompt Proceeding in question that McGrath RentCorp may reasonably request and as may be required in con▇▇▇▇▇▇▇ with the defense or settlement of such Proceeding and shall fully cooperate with McGrath RentCorp in every other respect. Except as provided in Sectio▇ ▇.▇ ▇elow, if McGrath RentCorp assumes the defense of the Proceeding, McGrath RentC▇▇▇ ▇▇▇ll take all 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 Indemnified Partydefense of a▇▇ ▇▇▇▇eeding, including McGrath RentCorp will not be liable to Xxxxxx under this Agreement or ▇▇▇▇▇▇ise for any Expenses subsequently incurred by Xxxxxx in connection with the employment defense of counsel such Proceeding other than reasonable costs of investigation or accountants, at its cost and expenseas otherwise provided in clauses (i) through (iv) below. The Indemnified Party Xxxxxx shall have the right to employ Xxxxxx's own counsel separate from counsel employed by the Indemnifying Party 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 employed by the Indemnified Party defense shall be at their expense. The Indemnifying Party Xxxxxx'▇ ▇▇▇▇▇se, unless: (i) the employment of counsel by Xxxxxx has been authorized by McGrath RentCorp; (ii) Xxxxxx has reasonably determined there may be ▇ ▇▇▇▇▇ict of interest between Xxxxxx and McGrath RentCorp in the defense of the Proceeding; (iii) after a Chan▇▇ ▇▇ ▇ontrol, the employment of counsel by Xxxxxx has been approved by Independent Counsel; or (iv) McGrath RentCorp shall not be liable for any settlement not, in fact, assume and conduct the defense o▇ ▇▇▇▇ Proceeding within a reasonable time after giving written notice of any such claim effected without its prior written consent, which shall not be unreasonably withheld; provided that if the Indemnifying Party does not election to assume the defense of such Proceeding. 5.2.3 Any Expenses incurred by McGrath RentCorp in defense of the Proceeding under this Section 5.2 (▇▇▇▇▇▇ in a situation described in clause (i), (ii) or prosecution (iv) of a claim as provided above within thirty (30Section 5.2.2) 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 prior written consent. Whether or not the 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated considered Expenses advanced by McGrath RentCorp to all rights and remedies of the Indemnifying PartyXxxxxx under Section 3 above.

Defense. If ​ (a) Each Party shall promptly notify the facts pertaining 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 (“Third Party Infringement”). In any such instance, the Parties shall as soon as practicable thereafter discuss in good faith the best response to a loss arise out such notice of Third Party Infringement, and, subject to Section 3.6, Gilead shall have the first right (but not the obligation) to defend any such claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the “Indemnifying Party” may assume the defense or the prosecution thereof by prompt written notice to the Indemnified Party, including the employment of counsel or accountantsThird Party Infringement, at its cost Gilead’s sole discretion, cost, and expense. The Indemnified Party , and Hookipa shall have the right to employ counsel separate from counsel employed by the Indemnifying Party be represented in any such action by counsel of its own choice at Hookipa’s sole cost 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 ​ CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[***]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED. (b) If Gilead declines or fails to assert its intention to defend any such claim effected without its prior written consentof Third Party Infringement within [***] days following receipt or, which shall not be unreasonably withheld; provided that if the Indemnifying Party does not assume the defense or prosecution as applicable, sending of a claim as provided above within thirty notice pursuant to Section 11.4(a), then Hookipa shall have the right (30but not the obligation) days after notice thereof, the Indemnified Party may settle to defend such claim without of Third Party Infringement at Hookipa’s sole discretion, cost and expense, and Gilead shall have the Indemnifying Partyright to be represented in any such action by counsel of its own choice at Gilead’s consentsole cost and expense. The Indemnifying ​ (c) In no event shall either Party shall not agree settle or otherwise compromise any Third Party Infringement by admitting that any Patent Right included within the Licensed Technology is invalid or unenforceable, unless explicitly approved by the other Party in writing. In the event that Gilead, subject to a Hookipa’s prior approval, enters into any settlement with respect to any actual or potential claim of Third Party Infringement which includes the acceptance of any claim which provides license to Patent Rights, Know-How, or other intellectual property rights owned or otherwise Controlled by any Third Party and necessary or useful for any relief other than the payment of monetary damages Research, Development, Manufacture, or which could have a material precedential impact or effect on the business or financial condition Commercialization of any Indemnified Party without the Indemnified Party’s prior written consentLicensed Product, such settlement shall further be subject to Section 9.5(c). Whether or not the 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Party.​

Defense. If In the facts pertaining event any Third Party shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters covered by the indemnity under this Agreement, or in the event that a loss arise out potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within thirty (30) days after written notice by the Indemnified Party (the “Notice”) to an Indemnifying Party of any third partysuch demand, claim or if there is any claim against a third party available by virtue of lawsuit, except as provided in the circumstances of the Lossnext sentence, the “Indemnifying Party” may assume Party shall have the defense or the prosecution thereof by prompt written notice to the Indemnified Party, including the employment of counsel or accountantsoption, at its sole cost and expense, to retain counsel to defend any such demand, claim or lawsuit; provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by 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 employ retain its own counsel separate from counsel employed 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 action 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 chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to participate thereinassert those defenses, but then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of such any counsel employed retained by the Indemnified Party shall be at their expenseto undertake the defense. The In the event that 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 fail to respond within thirty (30) days after notice thereofreceipt of the Notice, the Indemnified Party may settle retain counsel and conduct the defense of such demand, claim without 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 Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party’s consentdefense of the action is actually prejudiced by such failure. The assumption of the defense, or the non-assumption of the defense, by the purported Indemnifying Party shall will not agree affect such party’s right 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 prior written consent. Whether or not the Indemnifying Party chooses dispute its obligation 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Partyprovide indemnification hereunder.

Defense. If the facts pertaining to a loss Loss arise out of 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 “Indemnifying Party” may Indemnity Obligor may, by giving written notice to the Indemnified Party within 30 days following its receipt of the notice of such claim, elect to assume the defense or the prosecution thereof by prompt written notice to the Indemnified Partyof such claim, including the employment of counsel or accountants, 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 Indemnifying Party Indemnity Obligor in any such action and to participate thereinin such action, but the fees and expenses of such counsel employed by the Indemnified Party shall be at their the Indemnified Party's own expense. The Indemnifying Party Whether or not the Indemnity Obligor chooses so to defend or prosecute such claim, all the parties to this Agreement shall not cooperate in the defense or prosecution of such claim and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trials as may be reasonably requested in connection therewith. No Indemnity Obligor shall 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 prior written consent. Whether or not the 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Party.

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 pertaining to a loss arise out of Indemnifying Party so assumes the claim defense of any third party, or if there is any claim against a third party available by virtue of the circumstances of the Losssuch Action, the “Indemnifying Party” may assume the defense or the prosecution thereof by prompt written notice to the Indemnified Party, including the employment of counsel or accountants, at its cost and expense. The Indemnified Party shall have the right to employ separate counsel separate from counsel employed by the Indemnifying Party 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 employed by shall be the expense of such Indemnified Party unless (a) the Indemnifying Party has specifically agreed to pay such fees and expenses, (b) any relief other than the payment of money damages is sought against the Indemnified Party or (c) the Indemnified Party shall have been advised by its counsel that there may be at their expense. The one or more legal defenses available to it that are different from or additional to those available to the Indemnifying Party or that there may be a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such 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), and in any such case the reasonable fees and expenses of such separate counsel shall be borne by the Indemnifying Party, it being understood and agreed, however, that the Indemnifying Party shall not be liable for the fees and expenses of more than one separate firm of attorneys at any settlement time for the Indemnified Party together with its Affiliates, unless there shall be a conflict of any such claim effected without its prior written consentinterest between the Indemnified Party and an Affiliate thereof, in which case the Indemnifying Party shall not be unreasonably withheld; provided that if liable for the fees and expenses of more than an aggregate of two separate firms of attorneys at any time for the Indemnified Party and its Affiliates. No Indemnified Party shall settle or compromise or consent to entry of any Judgment with respect to any such Action for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party, unless the Indemnifying Party does not assume the defense or prosecution of a claim as provided above within thirty (30) days shall have failed, after reasonable notice thereof, to undertake control of such Action in the Indemnified Party may settle such claim without the Indemnifying Party’s consentmanner provided above in this Section 7.4. The Indemnifying Party shall not agree not, without the written consent of the Indemnified Party, settle or compromise or consent to a settlement entry of any claim Judgment with respect to any such Action (x) in which provides for any relief other than the payment of monetary money damages is or which could have a material precedential impact or effect on the business or financial condition of 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 without the Indemnified Party’s prior written consent. Whether or not the Indemnifying Party chooses of a release from all liability with respect 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying PartyAction.

Defense. If the facts pertaining relating to a loss Loss arise out of the claim of any third partya Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the “Indemnifying Party” may 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 by prompt written notice to the Indemnified Partythereof, 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 Indemnifying Party Indemnity Obligor 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 the Indemnified Party's own expense. The Indemnifying , unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party shall not has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be liable 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 any settlement of any such claim effected without its prior written consentIndemnified Party to employ separate counsel, which shall not be unreasonably withheld; provided that if or (c) the Indemnifying Party does not Indemnity Obligor has failed to 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 action and employ counsel reasonably satisfactory 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 prior written consent. Whether or not the Indemnifying Party Indemnity Obligor 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, hearings, trials proceedings and appeals, trial as may be reasonably requested in connection therewith. The Indemnifying 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 all rights and remedies shall stand in the place of the Indemnifying 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 44 connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Party.

Defense. If The Indemnifying Party shall have the facts pertaining to a loss arise out of the claim of any third partyright, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the “Indemnifying Party” may assume the defense or the prosecution thereof by prompt upon written notice to the Indemnified Party within thirty (30) days of receipt of timely notice from the Indemnified Party in respect of a claim by any Person other than the Parties arising out of or involving a Loss by such Person against an Indemnified Party (other than a Tax Claim asserted against any Landos Indemnified Party) (a “Third Party Claim”), to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. L▇▇▇▇▇ shall control the defense of any Tax Claim brought against any Landos Indemnified Party. If the Indemnifying Party does not expressly elect to assume the defense of such Third Party Claim within the time period and otherwise in accordance with the first sentence of this Section 5.4(b), the Indemnified Party shall have the sole right to assume the defense of such Third Party Claim. The party not controlling the defense of the Third Party Claim shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such party unless, in the written opinion of outside counsel to the Indemnified Party, including it is advisable for the employment Indemnified Party to be represented by separate counsel due to actual or potential conflicts of counsel or accountantsinterest, at its cost and expense. The in which case the Indemnified Party shall have the right to employ counsel separate from counsel employed by to represent it and in that event the Indemnifying Party in any such action and to participate therein, but the reasonable documented out-of-pocket fees and expenses of such separate counsel employed shall be paid by the Indemnified Indemnifying Party. The party not controlling the Third Party Claim (the “Non Controlling Party”) shall reasonably cooperate with the party controlling the Third Party Claim (the “Controlling Party”) in such defense and make available to the Controlling Party all witnesses, pertinent records, materials and information in the Non Controlling Party’s possession or under the Non Controlling Party’s control relating thereto as is reasonably required by the Controlling Party; provided, however, that such actions and cooperation by the Non Controlling Party will not unduly disrupt the operations of the Non Controlling Party’s business or cause the Non Controlling Party to waive any statutory or common law privileges, breach any confidentiality obligations owed to Third Parties or otherwise cause any confidential information of the Non Controlling Party to become public. The Controlling Party shall be at their expense. The Indemnifying Party shall not be liable for any settlement of any such claim effected not, without its the prior written consent, consent of the Non Controlling Party (which consent shall not be unreasonably withheld, conditioned or delayed), enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third Party Claim; provided that provided, however, that, if an Indemnifying Party is proposing to enter into any settlement or compromise or consent to the entry of any monetary judgment with respect to such Third Party Claims, such consent of Indemnified Party shall not be required if (i) the Indemnifying Party does not assume agrees to pay or cause to be paid any amounts payable pursuant to such settlement, compromise or judgment and such settlement, compromise or judgment includes no admission of liability by or other obligation on the defense part of the Indemnified Party, and (ii) such settlement compromise or prosecution judgment includes an unconditional written release by the claimant or plaintiff of a claim as provided above within thirty (30) days after notice thereof, the Indemnified Party may settle from all liability in respect of such claim without the Indemnifying Party’s consent. The Indemnifying Third 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 prior written consent. Whether or not the 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying PartyClaim.

Defense. If the facts pertaining to a loss arise out of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the LossExcept as otherwise provided herein, the “Indemnifying Party may elect to compromise or defend, at such Indemnifying Party” may assume the defense or the prosecution thereof 's own expense and by prompt written notice such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), including any Third Party Claim. If the employment Indemnifying Party elects to compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of counsel or accountantsthe 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 intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its cost 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 expense(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. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon advice of its outside legal counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim or (y) there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, then the Indemnified Party shall have the right to employ assume and direct the defense of such Third Party Claim. In such an event, the Indemnifying Party shall pay the reasonable fees and disbursements of counsel separate from of the Indemnifying Party and one counsel employed to all the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim (however, if the sole settlement relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full by the Indemnifying Party and if the settlement results in any such action the full and to participate therein, but the fees and expenses unconditional release of such counsel employed by all claims against the Indemnified Party shall be at their expense. The Indemnifying Party shall not be liable for any settlement of any by the person asserting such claim effected without its prior written consentclaim, 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 consent 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 prior written consent) over the objection of the other. Whether or not 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 so defend or prosecute such any claim, all the parties hereto Indemnified Party shall cooperate in make available to the defense or prosecution thereof and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to all rights and remedies the receipt of the Indemnifying Partyappropriate confidentiality agreements.

Defense. (a) If the facts pertaining to a loss Loss arise out of 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 “Indemnifying Party” may assume Party shall have the defense right to participate in, or the prosecution thereof by prompt giving written notice to the Indemnified Party, to elect to assume the defense of, or take full responsibility for, such audit, investigation, action, claim or proceeding, including the employment of counsel or accountants, at its cost in each case reasonably satisfactory to the Indemnified Party, and expensethe payment of the fees and disbursements of such counsel. The If the Indemnifying Party declines or fails to assume the defense 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 employ participate in such matter and to retain its own counsel separate from counsel employed by at the Indemnified Party's own expense (except that the Indemnifying Party in any such action and to participate therein, but shall be responsible for the fees and expenses of such the separate co-counsel employed by to the extent the Indemnified Party shall be at their expensereasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest). The Indemnifying Party shall not be liable for at all times use reasonable efforts to inform the Indemnified Party of the status of the defense of any settlement 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 effected or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without its the prior written consent, which shall not be unreasonably delayed or withheld; provided that if , of the Indemnifying Party. No Indemnifying Party does 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 assume be unreasonably delayed or withheld, of the defense Indemnified Party, unless such settlement, compromise or prosecution consent (A) includes an unconditional release of a claim as provided above within thirty (30) days after notice thereof, the Indemnified Party may settle and its officers, directors, employees and Affiliates from all liability arising out of such claim without the Indemnifying Party’s consent. The Indemnifying Party shall claim, and (B) does not agree to a settlement of any claim which provides for any impose an injunction or other equitable 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 upon the Indemnified Party’s prior written consent. . (c) Whether or not the Indemnifying Party chooses to so 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Indemnified Party.

Defense. If the facts pertaining to a loss arise out of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the LossExcept as otherwise provided herein, the “Indemnifying Party may elect to compromise or defend, at such Indemnifying Party” may assume the defense or the prosecution thereof 's own expense and by prompt written notice such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), including any Third Party Claim. If the employment Indemnifying Party elects to compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of counsel or accountantsthe Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, 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 cost 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 and expense(ii) the reasonable 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. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon the written advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such 36 42 Third Party Claim, or (y) there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, then the Indemnified Party shall have the right to employ counsel separate from counsel employed by assume and direct the defense and compromise of such Third Party Claim insofar as it relates to the Indemnified Party. In such an event, the Indemnifying Party in any such action and to participate therein, but shall pay the reasonable fees and expenses disbursements of such counsel employed by to the Indemnifying Party or Parties and the Indemnified Party shall be at their expense. The provided that the Indemnifying Party shall not be liable for the fees and expenses of more than one counsel for the Indemnified Parties other than local counsel. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any Claim (except that the Indemnifying Party may settle or compromise a Claim if 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 and the settlement or compromise includes a complete release of any such claim effected without its prior written consentthe other party or parties hereto) over the objection of the other, which provided, however, that consent to settlement or compromise shall not be unreasonably withheld; . In any event, except as otherwise 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 thereofherein, the Indemnified Party may settle such claim without and the Indemnifying Party’s consentParty may each participate, at its own expense, in the defense of such Third Party Claim. 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 prior written consent. Whether or not If the Indemnifying Party chooses to so defend or prosecute such claimany Claim, all the parties hereto Indemnified Party shall cooperate in make available to the defense or prosecution thereof and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to all rights and remedies the receipt of the Indemnifying Partyappropriate confidentiality agreements.

Defense. If a Third Party Claim is made against an Indemnitee, then the facts pertaining Indemnitor shall be entitled to a loss arise out participate in the defense of the claim of any third partyThird Party Claim and, or if there is any claim against a third party available by virtue of the circumstances of the LossIndemnitor so chooses, the “Indemnifying Party” may to assume the defense or of the prosecution thereof Third Party Claim by prompt providing written notice within ten (10) days of receipt of an Indemnification Notice to the Indemnitor, and such written notice to assume the Indemnified Partydefense of any claim shall include a certification that the Indemnitor will indemnify the Indemnitee from and against the entirety of any Losses the Indemnitee may suffer resulting from, including arising out of, relating to, in the nature of or caused by such claim; provided, that the Indemnitor shall not be entitled to assume the defense (or continue the defense) (i) unless such claim involves only money damages and does not seek an injunction or other equitable relief, (ii) if such claim relates to or arises in connection with a criminal or quasi criminal proceeding, action, indictment, allegation or investigation, (iii) if the settlement of, or an adverse judgment with respect to, such claim is, in the good faith judgment of the Indemnitee, likely to establish a precedent, custom or practice materially adverse to the continuing business interests of the Indemnitee or the Indemnitee has been advised in writing by counsel that a reasonable likelihood exists of a some other conflict of interest between the Indemnitee and the Indemnitor, (iv) such Third Party Claim may give rise to Losses which are more than the remaining Escrow Amount at the time such claim is submitted by the Indemnitee, (v) the Indemnitee reasonably believes an adverse determination with respect to the action, lawsuit, investigation, proceeding or other claim giving rise to such claim for indemnification would be detrimental to or injure the Indemnitee’s reputation or future business prospects, or (vi) upon petition by the Indemnitee, the appropriate court rules that the Indemnitor failed or is failing to vigorously prosecute or defend such Third Party Claim. If the Indemnitor so elects to assume the defense of a Third Party Claim, then the Indemnitor shall not be liable to the Indemnitee for legal expenses subsequently incurred by the Indemnitee in connection with the defense of the Third Party Claim unless (A) the Indemnitor shall have failed, or is not entitled, to assume the defense of such Third Party Claim in accordance with this Section 8.6(b), (B) the employment of such counsel has been specifically authorized in writing by the Indemnitor, which authorization shall not be unreasonably withheld, or accountants(C) the named parties to any such action (including any impleaded parties) include both such Indemnitee and the Indemnitor and such Indemnitee shall have been advised in writing by such counsel that there may be one (1) or more legal defenses available to the Indemnitee which are not available to the Indemnitor, or available to the Indemnitor the assertion of which would be adverse to the interests of the Indemnitee. If the Indemnitor assumes such defense, then the Indemnitor shall do so through counsel reasonably acceptable to the Indemnitee at its cost the expense of the Indemnitor and expense. The Indemnified Party the Indemnitee 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 Indemnifying Indemnitor, it being understood, however, that the Indemnitor shall control such defense, including any settlement or compromise of the Third Party in any such action and to participate thereinClaim, but the fees and expenses of no such counsel employed by the Indemnified Party shall settlement or compromise may be at their expense. The Indemnifying Party shall not be liable for any settlement of any such claim effected without its prior written the Indemnitee’s consent, which shall will not be unreasonably withheld, conditioned or delayed; provided provided, however, that the Indemnitee’s consent shall not be required if (1) such settlement is for monetary payment (all of which is indemnifiable by the Indemnifying Party Indemnitor) only and does not assume the defense impose injunctive relief 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 other restrictions of any claim which provides for kind or nature on any relief other than Indemnitee and (2) expressly and unconditionally releases the payment of monetary damages or which could have a material precedential impact or effect on Indemnitee from all Liabilities with respect to such Third Party Claim, without prejudice pursuant to an unconditional term thereof. If the business or financial condition of any Indemnified Party without the Indemnified Party’s prior written consent. Whether or not the Indemnifying Party Indemnitor chooses to so 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 in all reasonable respects. Such cooperation shall include the retention and shall furnish such records, information (upon the Indemnitor’s request) provision to the Indemnitor of records that are reasonably relevant to the Third Party Claim and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, making employees available on a mutually convenient basis as may be reasonably requested necessary to provide additional information and explanation of any material provided. If the Indemnitor, within ten (10) days of receipt of an Indemnification Notice relating to a Third Party Claim, chooses not to assume defense of the Third Party Claim or fails to notify the Indemnitee that it is assuming the defense of such claim or, within a reasonable time after receipt of an Indemnification Notice relating to a Third Party Claim, fails to defend the Third Party Claim actively and in connection therewithgood faith, then the Indemnitee shall have the right to contest, settle or compromise the Third Party Claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Indemnitee shall have the right to pay or settle any Third Party Claim; provided, that, in such event it shall waive any right to indemnity therefor by the Indemnitor for such Third Party Claim or it shall have received the Indemnitor’s prior written consent (which will not be subrogated to all rights and remedies of the Indemnifying Partyunreasonably withheld, conditioned or delayed).

Defense. Promptly after receipt by an Indemnified Person of notice of any claim or demand or the commencement of any suit, action or proceeding by any third party with respect to which indemnification may be sought hereunder, such Indemnified Person shall notify in writing the Indemnitor of such claim or demand or the commencement of such suit, action or proceeding, but failure so to notify the Indemnitor shall not relieve the Indemnitor from any liability which the Indemnitor may have hereunder or otherwise, unless the Indemnitor shall be actually prejudiced by such failure. If the facts pertaining to a loss arise out of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the LossIndemnitor shall so elect, the “Indemnifying Party” may Indemnitor shall assume the defense of such claim, demand, action, suit or the prosecution thereof by prompt written notice to the Indemnified Partyproceeding, including the employment of counsel reasonably satisfactory to such Indemnified Person, and shall pay the fees and disbursements of such counsel. In the event, however, that such Indemnified Person shall reasonably determine that having common counsel would present such counsel with a conflict of interest or accountantsalternative defenses shall be available to an Indemnified Person or if the Indemnitor shall fail to assume the defense of the claim, at its cost demand, action, suit or proceeding in a timely manner, then such Indemnified Person may employ separate counsel to represent or defend such Person against any such claim, demand, action, suit or proceeding and expensethe Indemnitor shall pay the reasonable fees and disbursements of such counsel; provided, however, that the Indemnitor shall not be required to pay the fees and disbursements of more than one separate counsel for all Indemnified Persons in any jurisdiction in any single action, suit or proceeding. The For any claim, demand, action, suit or proceeding the defense of which the Indemnitor shall assume, the Indemnified Party Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action participate therein and to participate thereinretain its own counsel at such Indemnified Person's own expense (except as otherwise specifically provided in this Section 12.4), but the fees and expenses of so long as 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 participation does not assume interfere with the defense or prosecution Indemnitor's control 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 prior written consent. Whether or not the Indemnifying Party chooses to so defend or prosecute such claim, all demand, action, suit or proceeding. The Indemnitor shall not, without the parties hereto shall cooperate prior written consent of the Indemnified Person, settle or compromise or consent to the entry of any judgment in the defense any pending or prosecution thereof and shall furnish such recordsthreatened claim, information and testimonyaction, and attend such conferences, discovery proceedings, hearings, trials and appeals, as suit or proceeding in respect of which indemnification may be reasonably requested sought hereunder unless such settlement, compromise or consent shall include an unconditional release of such Indemnified Person from all liability arising out of such xxx claim, demand, action, suit or proceeding and would not prohibit, restrict or impair the Indemnified Person from engaging in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Partyany business.

Defense. If the facts pertaining to a loss arise out of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the LossExcept as otherwise provided herein, the “Indemnifying Party may elect to compromise or defend, at such Indemnifying Party” may assume the defense or the prosecution thereof 's own expense and by prompt written notice such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), including any Third Party Claim. If the employment Indemnifying Party elects to compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of counsel or accountantsthe Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, 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 cost 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 and expense(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. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon the written advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim, or (y) there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, then the Indemnified Party shall have the right to employ counsel separate from counsel employed by assume and direct the defense and compromise of such Third Party Claim insofar as it relates to the Indemnified Party. In such an event, the Indemnifying Party in any such action and to participate therein, but shall pay the reasonable fees and expenses disbursements of such counsel employed by to the Indemnifying Party or Parties and the Indemnified Party shall be at their expense. The provided that the Indemnifying Party shall not be liable for the fees and expenses of more than one counsel for the Indemnified Parties other than local counsel. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any settlement claim (unless the sole relief payable to a third party in respect of any such Third Party Claim is monetary damages that are paid in full by the party settling or compromising such claim effected without its prior written consentand the settlement or compromise includes a complete release of the other party or parties hereto) over the objection of the other, which provided, however, that consent to settlement or compromise shall not be unreasonably withheld; . In any event, except as otherwise 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 thereofherein, the Indemnified Party may settle such claim without and the Indemnifying Party’s consentParty may each participate, at its own expense, in the defense of such Third Party Claim. 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 prior written consent. Whether or not If the Indemnifying Party chooses to so defend or prosecute such any claim, all the parties hereto Indemnified Party shall cooperate in make available to the defense or prosecution thereof and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to all rights and remedies the receipt of the Indemnifying Partyappropriate confidentiality agreements.

Defense. If The Indemnified Party intending to claim indemnification under this ARTICLE VIII shall promptly notify the facts pertaining to a loss arise out of the claim Indemnifying Party of any third partyAction or Loss in respect of which the Indemnified Party intends to claim such indemnification, or if there is any claim against a third party available and the Indemnifying Party shall be entitled to assume and control the defense thereof (with counsel selected by virtue of the circumstances of the Loss, the “Indemnifying Party” may assume the defense ) whether or the prosecution thereof by prompt written notice to the Indemnified Partynot such Action is rightfully brought; provided, including the employment of counsel or accountantshowever, at its cost and expense. The that an Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate thereinretain its own counsel, but with the fees and expenses to be paid by the Indemnified Party, unless Indemnifying Party does not assume the defense, in which case the reasonable fees and expenses of such counsel employed retained by the Indemnified Party shall be at their expensepaid by the Indemnifying Party. The Indemnified Party, and its employees and agents, shall cooperate fully with the Indemnifying Party and its legal representatives in the investigation and defense of any Action or Loss. The Indemnifying Party shall not be liable for the indemnification of any 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, consent (which shall not be unreasonably withheld; withheld or delayed) of the Indemnified Party before entering into any settlement of (or resolving by consent to the entry of judgment upon) such Action unless (A) there is no finding or admission of any violation of law or any violation of the rights of any Person by an Indemnified Party, no requirement that the Indemnified Party admit fault or culpability, and no adverse effect on any other claims that may be made by or against the Indemnified Party and (B) the sole relief provided is monetary damages that if are paid in full by the Indemnifying Party or its insurer and such settlement does not assume the defense or prosecution of a claim as provided above within thirty (30) days after notice thereof, require the Indemnified Party may settle such claim without the Indemnifying Party’s consent. The Indemnifying Party shall not agree to a settlement of take (or refrain from taking) 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 prior written consent. Whether or not the 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Partyaction.

Defense. If the facts pertaining (i) Within thirty (30) days after delivery of an Indemnification Notice with respect to a loss arise out of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the LossThird Party Claim, the “Indemnifying Party” may assume the defense or the prosecution thereof by prompt Party may, upon written notice thereof to the Indemnified Party, including assume control of the employment defense of such Third Party Claim with counsel 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 accountantsdifferent 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 expenseown expense (except to the extent otherwise contemplated by the preceding sentence), it being understood, however, that the Controlling Party shall control such defense in all respects. The Controlling Party shall keep the Non-controlling Party advised of the status of such Third Party Claim and the defense thereof and shall consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Controlling Party and the Non-controlling Party shall reasonably cooperate in the defense, prosecution and/or settlement of any Third Party Claim, which cooperation shall include the retention and (upon the Controlling Party’s request) the provision to the Controlling Party of records that are reasonably relevant to such Third Party Claim and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any Third Party Claim unless (A) such settlement or judgment (i) is solely for money damages and the Indemnifying Party agrees to pay all such money damages, (2) includes a complete and unconditional release of the Indemnified Party and its Affiliates from further Liability, (3) involves no admission of wrongdoing by the Indemnified Party or any of its Affiliates and (4) excludes any injunctive or non-monetary relief applicable to the Indemnified Party or any of its Affiliates or (B) the Indemnified Party consents thereto. If the Indemnifying Party is not permitted to under the terms of this Agreement, chooses not to, or does not, assume the defense of 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 entry of judgment with respect to such Third Party Claim at the expense of the Indemnifying Party in any such action and to participate thereinParty; provided, but the fees and expenses of such counsel employed by however, the Indemnified Party shall be at their expense. The Indemnifying not compromise or settle such Third Party shall not be liable for any settlement Claim or consent to the entry of any judgment with respect to such claim effected Third Party Claim without its the prior written consentconsent of the Indemnifying Party, which consent shall not be unreasonably withheld; provided that if the Indemnifying Party does not assume the defense , conditioned 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 prior written consent. Whether or not the 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Partydelayed.

Defense. If the facts pertaining to In case any claim, demand or deficiency (a loss arise out of the claim "CLAIM") is asserted or any action is commenced or notice is given of any third partyadministrative or other proceeding against the person(s) and/or entities seeking indemnity under this SECTION 11 (hereinafter referred to as the "INDEMNITEE") in respect of which such indemnity is 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 due), Indemnitor may give Indemnitee written notice of the circumstances of the Loss, the “Indemnifying Party” may assume its election to conduct the defense or the prosecution thereof by prompt written notice to the Indemnified Party, including the employment of counsel or accountants, such Claim at its cost and own expense. The Indemnified Party If Indemnitor has given Indemnitee such notice of election to conduct the defense, Indemnitee shall nevertheless have the right to employ counsel separate from counsel employed by participate in the Indemnifying defense thereof, but such participation shall be solely at its expense. If Indemnitor shall not notify Indemnitee in writing (within the time hereinabove provided) of its election to conduct the defense of such Claim, Indemnitee may (but need not) conduct (at the expense of Indemnitor) the defense of any Claim. The party assuming the defense of a Claim hereunder (the "DEFENDING PARTY") shall notify the other party of its intention to settle, compromise or satisfy any such Claim and may make such settlement, compromise or satisfaction unless such other party (the "ASSUMING PARTY") shall notify the Defending 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 writing (within thirty (30) days after receipt of such notice thereofof intention to settle, compromise or satisfy) of its election to assume (at its sole expense) the Indemnified Party may settle defense of any such claim without the Indemnifying Party’s consentClaim and promptly thereafter take appropriate action to implement such defense. The Indemnifying Assuming Party shall not agree to a indemnify the Defending Party and hold it harmless against any losses in excess of the amount of losses the Defending Party would have incurred if the proposed 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 prior written consenthad been agreed upon. Whether or not the Indemnifying Party chooses to so defend or prosecute such claim, all the parties hereto Indemnitee shall cooperate with Indemnitor in the defense or prosecution thereof and shall furnish such recordsdefense, information and testimonyat Indemnitor's cost, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested Indemnitee shall provide reasonable assistance of Indemnitee's employees in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Partywith such defense.

Defense. If (i) In the facts pertaining to a loss arise out case of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the Lossclaim, the “Indemnifying Party” Party may assume participate in the defense or thereof and, if it so chooses and irrevocably acknowledges its obligation to indemnify the prosecution thereof by prompt written notice Indemnified Party therefor, control the defense of an Indemnifiable Claim with counsel reasonably satisfactory to the Indemnified Party; provided, including how- ever, that if the employment of counsel or accountants, at its cost and expense. 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 its defense exists or is likely to develop during the 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 (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 have 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 employ counsel separate from counsel employed by control the defense of the In- demnifiable Claim may participate in the defense at its own expense. In the case of a third party claim, the Indemnifying Party in any such action 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 participate therein, but indem- nify the Indemnified Party therefor. The Indemnifying Party shall be liable for the reasonable fees and expenses of such counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof, provided that it either irrevocably acknowledges in writing its indemnity obligations with respect to the Indemnity Claim or it is determined by a court of competent juris- diction that it is obligated hereunder to provide such indemnification. If the Indemni- fying Party disputes its liability with respect to a potential Indemnifiable Claim or the amount thereof (whether or not it desires to defend the Indemnified Party against a third party claim), the parties shall be at their expenseendeavor in good faith to settle such dispute. The Indemnifying Party shall not be liable for any settlement of any such settle or compromise a third party claim effected or legal pro- ceeding without its the prior written consentconsent of the Indemnified Party, which consent shall not be unreasonably withheld, delayed or conditioned; provided that if such prior written consent shall not be required with respect to any Indemnifiable Claim that relates to any item referred to in Sections 9.1(c), (d), (e), (f), (g), (h), or (i), except with respect to any Indemnifiable Claim relating to Remediation of Hazardous Sub- stances that is covered by Section 5.18 shall remain subject in all respects to the terms of Section 5.18. The Indemnified Party shall not settle or compromise a third party claim for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense de- fense of any third party claim or prosecution of a claim as provided above litigation resulting therefrom within thirty (30) 20 days after the date it receives notice thereofof 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 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 consentreasonable request, of the status of the litigation. The Indemnified Party’s choice of counsel shall be subject to the consent of the Indemnifying Party, such consent not to be unreasonably with- held or delayed. 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 prior written consent. Whether or not the Indemnifying Party chooses to so defend or prosecute such claim, all the parties hereto shall cooperate 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 prosecution thereof and shall furnish sharing its right to control such recordsdefense so that Dynegy’s insurance rights are not lost, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated subject to all rights and remedies the condition that the insurer accepts the tender of the Indemnifying Partyclaim 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 So long as the facts pertaining conditions set forth in Section 8.4(a)(i) for the Indemnifying Party to a loss arise out of 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 “Indemnifying Party” may assume the defense of a Third Party Claim are and remain satisfied and the Indemnifying Party is vigorously defending such Third Party Claim, the Indemnifying Party may conduct the defense of the Third Party Claim to the extent permitted by this Agreement. The Indemnified Party may retain separate co-counsel at its sole cost and expense to represent it in connection with the Third Party Claim, and the Indemnifying Party shall cooperate, and cause the counsel selected by the Indemnifying Party to cooperate, with such co-counsel in connection with the response, defense and settlement of the Third Party Claim and any related suit or the prosecution thereof proceeding. If there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate, as advised in writing by prompt written notice outside counsel to the Indemnified Party, including for the employment of same counsel or accountants, at its cost and expense. The to represent both the Indemnified Party shall have the right to employ counsel separate from counsel employed by and the Indemnifying Party in any such action and to participate thereinParty, but the fees and expenses of such counsel employed by then the Indemnified Party shall 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 their expensethe expense of the Indemnifying Party. The Indemnifying Party shall not be liable for any settlement of any such claim effected not, without its the prior written consent, consent of the Indemnified Party (which consent shall not be unreasonably withheld; provided that 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 Affiliates, (iii) does not include an unconditional provision whereby the plaintiff or claimant in the matter completely and unconditionally releases the Indemnified Party and its Affiliates from all Liability with respect to such matter, with prejudice, (iv) involves Taxes or (v) would result in the finding or admission of any violation of Law or Governmental Order by the Indemnified Party. With respect to the defense of any Third Party Claim, the party responsible for the defense of the Third Party Claim shall, to the extent reasonably requested by the other party, keep such other party informed as to the status of such claim, including all settlement negotiations and offers and shall: (A) conduct the defense of the Third Party Claim actively and vigorously and keep the other Party fully informed of material developments in the Third Party Claim at all stages thereof, (B) promptly submit to the other Party copies of all pleadings, responsive pleadings, motions and other similar legal documents and papers received or filed in connection therewith, (C) permit the other Party and its counsel to confer on the conduct of the defense thereof, and (D) permit the other Party and its counsel an opportunity to review and comment on, which comments the Indemnifying Party 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 prior written consent. Whether or not the Indemnifying Party chooses to so defend or prosecute such claimreasonably consider, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may legal papers to be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated submitted prior to all rights and remedies of the Indemnifying Partytheir submission.

Defense. If the facts pertaining to a loss arise out of the claim of any third party, 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 Indemnified Party having actual knowledge of such claim) notify the indemnifying party of such claim. The indemnifying party shall have ten (10) business days after receipt of the Lossabove-referenced notice to undertake, through counsel of its choosing (subject to the reasonable consent of the Indemnified Party) and at the expense of the indemnifying party, the “Indemnifying Party” may assume settlement or defense thereof; provided, however, that any such settlement shall be subject to the defense or the prosecution thereof by prompt written notice to consent of the Indemnified Party, including which consent shall not be unreasonably withheld, conditioned or delayed. If approval of the employment monetary terms of counsel any such proposed settlement is not given, then the Indemnifying Party's maximum monetary obligation for any future settlement or accountantsjudgment shall be the amount of the settlement that was not so approved. If the indemnifying party does not notify the Indemnified Party within ten (10) business days after receipt of the Indemnified Party's notice of a claim of indemnity hereunder that the indemnifying party elects to undertake the defense thereof, at its cost and expense. The or the indemnifying party ceases to reasonably contest such claim in good faith, the Indemnified Party shall have the right to employ counsel separate from counsel employed by contest, settle or compromise the Indemnifying Party in any such action claim at the expense of the indemnifying party and subject to participate therein, but the fees and expenses written consent 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 consentindemnifying party, which shall not be unreasonably withheld; provided that if the Indemnifying Party does not assume , conditioned or delayed. In connection with 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 prior written consent. Whether or not the Indemnifying Party chooses to so defend or prosecute such claim, all each party will 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 attend such conferences, discovery proceedings, hearings, trials and appeals, as may be other documents within its control that are reasonably requested in connection therewiththe course of such defense. The Indemnifying Party Nothing contained in this Section 9.3.2 shall be subrogated construed as a limitation on the right of any party to all rights and remedies of the Indemnifying Partyindemnification under this Agreement.

Defense. If At the facts pertaining to a loss arise out request of 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 “Indemnifying Party” may assume the defense or the prosecution thereof by prompt written notice to the Indemnified Party, including the employment Indemnifying Party shall promptly assume the costs of counsel or accountants, at its cost and expensedefense of an Indemnifiable Claim. The Indemnifying Party shall retain experienced counsel reasonably satisfactory to the Indemnified Party and thereafter shall control defense of the claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to employ retain counsel separate from counsel employed by of its choice and control the defense of the Indemnifiable Claim under any of the following circumstances: (i) The Indemnifying Party fails to assume the defense of 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 impleaded parties) include both the Indemnified Party and the Indemnifying Party in any such action and to participate therein, but the fees and expenses of such counsel employed by the Indemnified Party shall is advised by counsel that there may be at their expenseone or more legal defenses available to the Indemnified Party that are different from or additional to those available to the Indemnifying Party. 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 If the Indemnifying Party does not assume such defense or the Indemnified Party has the right to control the defense or prosecution of a claim as provided above within thirty (30) days after notice thereofthe Indemnifiable Claim, the Indemnified Party may compromise or settle such claim without the Indemnifiable Claim on behalf of and for the account and risk of the Indemnifying Party’s consent, who shall be bound by the result. In all cases, the party without the right to control the defense of the Indemnifiable Claim may participate in the defense at its own expense. 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 prior written consent. Whether or not the Indemnifying Party chooses to so defend or prosecute such claim, all 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 attend such conferences, discovery proceedings, hearings, trials and appeals, as may be other documents within its control that are reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies the course of the Indemnifying Partysuch defense.

Defense. If any claim, demand or liability is asserted by any third party against any Indemnified Party, the facts pertaining to a loss arise out Indemnifying Party shall have the right and shall upon the written request of the claim Indemnified Party, defend any Actions brought against the Indemnified Party in respect of any third partyIndemnifiable Claims with counsel of its choice reasonably acceptable to the Indemnified Party and, or if there is any claim against in the case of a third party available by virtue Tax-related Action, tax advisors of the circumstances of the Loss, the “Indemnifying Party” may assume the defense or the prosecution thereof by prompt written notice its choice reasonably acceptable to the Indemnified Party. In any such action or proceeding, including the employment of counsel or accountants, at its cost and expense. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate thereinretain its own counsel, but the fees and expenses of such counsel employed by shall be at its own expense unless (a) the Indemnifying Party and the Indemnified Party mutually agree in writing to the retention of such counsel, or (b) the named parties to any such suit, action or proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, and in the reasonable judgment of the Indemnified Party, representation of the Indemnifying Party and the Indemnified Party by the same counsel would be inadvisable due to potential conflicts of interests between them. The Parties shall cooperate and may participate in the defense of all third-party claims which may give rise to Indemnifiable Claims hereunder. If the Indemnifying Party assumes the defense, (i) it shall be at their expense. The 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 shall assumed the defense pursuant to clause (a) above and not be liable for any clause (b), and (ii) no compromise or settlement of any such claim claims may be effected by the Indemnifying Party without its prior the Indemnified Party's written consent, 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 if 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 not, within twenty (20) days after the Indemnified Party's written notice is given, give written notice to the Indemnified Party of its election to assume the defense or prosecution of a claim as provided above within thirty (30) days after notice thereofsuch Action, 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 prior written consent. Whether or not the 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated bound by any determination made in such Action or any compromise or settlement effected by the Indemnified Party. In connection with the defense of any claim, each Party shall make available to all rights and remedies the Party controlling such defense, any books, records or other documents within its control that are reasonably requested in the course of the Indemnifying Partyor necessary or appropriate for such defense.

Defense. If the facts pertaining to a loss arise out of the claim of any third such 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 “Indemnifying Party” may indemnifying Party will be entitled to participate in and to assume the defense or thereof to the prosecution thereof extent that it may wish, with counsel reasonably satisfactory to such indemnified party, by prompt giving written notice to the Indemnified Party, including the employment of counsel or accountants, at its cost and expense. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the 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 indemnified party within thirty (30) days of its receipt of written notice of such action from the indemnified party, and after such notice from the indemnifying Party to such indemnified party of the indemnifying Party’s election to assume the defense thereof, the Indemnified Party may settle such claim without the Indemnifying Party’s consent. The Indemnifying indemnifying Party shall not agree be liable to such indemnified party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof unless the indemnifying Party has failed PURCHASE AND SALE AGREEMENT -49- to assume the defense of such claim and to employ counsel reasonably satisfactory to such indemnified party. Notwithstanding any of the foregoing to the contrary, the indemnified party will be entitled to 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. As a condition to the indemnifying Party’s obligations hereunder, the indemnified party will in good faith cooperate with and assist the indemnifying Party in the prosecution or defense of such indemnified claim at no unreasonable out of pocket expense to the indemnified party. No indemnifying Party shall consent to entry of any judgment or enter into any settlement with respect to a claim either (a) without the consent of the indemnified party, which consent shall not be unreasonably withheld, or (b) unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability with respect to such claim. No indemnified party shall consent to entry of any judgment or enter into any settlement of any claim such action, the defense of 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 has been assumed by an indemnifying Party, without the Indemnified consent of such indemnifying Party’s prior written consent. Whether or , which consent shall not the 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Partyunreasonably withheld.

Defense. If a Third Party Claim is made against the facts pertaining Indemnified Party, then the Indemnifying Party shall be entitled to a loss arise out of participate in the claim of any third partydefense thereof and, or if there is any claim against a third party available by virtue of the circumstances of the LossIndemnifying Party so chooses, the “Indemnifying Party” may to assume the defense or thereof with counsel selected by the prosecution thereof by prompt written notice Indemnifying Party and reasonably satisfactory to the Indemnified Party, including . The Indemnifying Party shall be liable for the employment 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, 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 (i) prior to assuming the defense of such Third Party Claim, the Indemnifying Party shall provide to the Indemnified Party an undertaking stating that such Indemnifying Party is able to and will assume the payment of all defense fees and costs and (ii) the Indemnifying Party’s assumption of the defense of such Third Party Claim shall not signify any agreement, obligation or accountantscommitment on the part of the Indemnifying Party to assume or pay any amount awarded to a claimant in respect of such Third Party Claim. If the Indemnifying Party assumes such defense, at its cost and expense. The 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 Indemnifying Party in any such action and to participate thereinParty, but it being understood, however, that 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 control 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 consentdefense. 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 prior written consent. Whether or not If the Indemnifying Party chooses to so 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 such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. If the Indemnifying Party, within a reasonable time after receipt of an Indemnification Notice relating to a Third Party Claim, chooses not to assume defense of a Third Party Claim or fails to defend such Third Party Claim actively and in good faith, then the Indemnified Party shall (upon further notice) have the right to defend, compromise or settle of such Third Party Claim or consent to the entry of judgment with respect to such Third Party Claim.

Defense. If a Third Party Claim is made against the facts pertaining Indemnified Party, then the Indemnifying Party shall be entitled to a loss arise out participate in the negotiation, settlement and defense thereof with counsel of its choice and, if the claim of any third partyIndemnifying Party so chooses, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the “Indemnifying Party” may to assume the negotiation, settlement and defense or thereof with counsel selected by the prosecution thereof by prompt written notice Indemnifying Party and reasonably satisfactory to the Indemnified Party, including . The Indemnifying Party shall be liable for the employment 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, then the Indemnifying Party shall not be liable to the Indemnified Party for the fees and expenses of counsel subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, that (i) prior to assuming the defense of such Third Party Claim, the Indemnifying Party shall provide to the Indemnified Party an undertaking stating that such Indemnifying Party is able to and will assume the payment of all defense fees and costs and (ii) the Indemnifying Party’s assumption of the defense of such Third Party Claim shall not signify any agreement, obligation or accountantscommitment on the part of the Indemnifying Party to assume or pay any amount awarded to a claimant in respect of such Third Party Claim. If the Indemnifying Party assumes such defense, at its cost and expense. The 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 Indemnifying Party in any such action and to participate thereinParty, but it being understood, however, that 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 control 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 consentdefense. 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 prior written consent. Whether or not If the Indemnifying Party chooses to so 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 such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. If the Indemnifying Party has not within thirty (30) Business Days after receipt of an Indemnification Notice relating to a Third Party Claim, chosen to assume defense of a Third Party Claim or fails to defend such Third Party Claim actively and in good faith, then the Indemnified Party shall (upon further written notice) have the right to defend such Third Party Claim. The Indemnified Party shall not take any action the purpose of which is to prejudice the defense of any claim subject to indemnification hereunder or to induce a third party to assert a claim subject to indemnification hereunder.

Defense. (a) If the facts pertaining to a loss Loss arise out of 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 “Indemnifying Party” may Indemnity Obligor may, by giving written notice to the Indemnified Party within twenty (20) days following its receipt of the notice of such claim, elect to assume the defense or the prosecution thereof by prompt written notice to the Indemnified Partyof such claim, including the employment of counsel or accountants, accountants at its cost and expense. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party Indemnity Obligor in any such action and to participate thereinin such action, but the fees and expenses of such counsel employed by the Indemnified Party shall be at their the Indemnity Obligor’s own 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 . (30b) 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 prior written consent. Whether or not the Indemnifying Party Indemnity Obligor chooses to so 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, testimony and shall attend such conferences, discovery proceedings, hearings, proceedings and trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying 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 may settle any claim affecting an Indemnified Party without such 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 claim, the Indemnity Obligor shall not be subrogated to all rights and remedies shall not stand in the place of the Indemnifying PartyIndemnified 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.

Defense. If In the facts pertaining event any person or entity not a party to this Agreement shall make a loss arise out demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, then the party receiving notice of such event shall promptly notify the other party or parties of the demand, claim or lawsuit. Within ten (10) days after notice by the Indemnified Party (the "Notice") to an Indemnifying Party of any third partysuch demand, claim or if there is any claim against a third party available by virtue of lawsuit, except as provided in the circumstances of the Lossnext sentence, the “Indemnifying Party” may assume Party shall have the defense or the prosecution thereof by prompt written notice option, at its sole cost and expense, to retain counsel for the Indemnified Party, including to defend any such demand, claim or lawsuit, provided that counsel who will conduct the employment defense of counsel such demand, claim or accountants, at its cost and expenselawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (a) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, or (b) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (c) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to employ retain its own counsel separate from counsel employed 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 action 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 chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or additional to those available to and which have not been asserted by the Indemnifying Party, the Indemnifying Party will not have at the election of the Indemnified Party, the right to participate thereincontinue the defense of such demand, but claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of such any counsel employed retained by the Indemnified Party shall be at their expenseto undertake the defense. The In the event that 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 fail to respond within thirty ten (3010) days after notice thereofreceipt of the Notice, 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 prior written consent. Whether or not the Indemnifying Party chooses to so defend or prosecute such claim, all the parties hereto shall cooperate in retain counsel and conduct the defense of such demand, claim or prosecution thereof and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appealslawsuit, as it may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights its sole discretion deem proper, at the sole cost and remedies expense of the 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 the facts pertaining to a loss arise out of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the LossExcept as otherwise provided herein, the “Indemnifying Party may elect to compromise or defend, at such Indemnifying Party” may assume the defense or the prosecution thereof 's own expense and by prompt written notice such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), including any Third Party Claim. If the employment Indemnifying Party elects to compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of counsel or accountantsthe Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, 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 cost 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 and expense(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. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon the written advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim, or (y) there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, then the Indemnified Party shall have the right to employ be represented by counsel separate from counsel employed selected by it. In such an event, the Indemnifying Party in any such action and to participate therein, but shall pay the reasonable fees and expenses disbursements of such counsel employed by to the Indemnifying Party or Parties and the Indemnified Party shall be at their expense. The provided that the Indemnifying Party shall not be liable for any settlement the fees and expenses of any such claim effected without its prior written consentmore than one counsel for the Indemnified Parties other than local counsel. Notwithstanding the foregoing, which shall not be unreasonably withheld; provided that if neither the Indemnifying Party does not assume the defense or prosecution of a claim as provided above within thirty (30) days after notice thereof, nor the Indemnified Party may settle such or compromise any claim without (unless the Indemnifying Party’s consent. The Indemnifying Party shall not agree sole relief payable to a settlement third party in respect of any claim which provides for any relief other than the payment of such Third Party Claim is monetary damages that are paid in full (subject to the Sellers' Basket or which could have the WRF Basket, as applicable) by the party settling or compromising such claim, the settlement or compromise includes a material precedential impact complete release of the other party or effect on parties hereto and, in the business case of a settlement or financial condition of any Indemnified Party without compromise by the Indemnified Party’s prior written consent, 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. Whether or not 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 so defend or prosecute such any claim, all the parties hereto Indemnified Party shall cooperate in make available to the defense or prosecution thereof and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to all rights and remedies the receipt of the Indemnifying Partyappropriate confidentiality agreements.

Defense. If Upon receipt of notice under Subsection (a) from the facts pertaining Indemnitee, the Indemnifying Party will have the duty to a loss arise out either compromise or defend, at its own expense and by counsel (reasonably satisfactory to Indemnitee), such Action. The Indemnifying Party will promptly (and in any event not more than twenty (20) days after receipt of the claim Indemnitee's original notice) notify the Indemnitee in writing that it acknowledges its obligation to indemnify the Indemnitee with respect to the Action pursuant to this Article 8 and of any third party, its intention to either compromise or if there is any claim against a third party available by virtue of defend such Action. Once the circumstances of the Loss, the “Indemnifying Party” may assume the defense or the prosecution thereof by prompt written Party gives such notice to the Indemnified PartyIndemnitee, including the employment Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or accountantsany other expenses subsequently incurred by the Indemnitee in connection with such defense, at its cost other than the Indemnitee's reasonable costs of investigation and expensecooperation. The Indemnified Party shall However, the Indemnitee will have the right to employ separate counsel separate from and to control the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses of such counsel) if: (i) the use of the counsel employed chosen by the Indemnifying Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the Indemnitee, and the Indemnitee reasonably concludes that there may be legal defenses available to it that are different from or additional to those available to the Indemnifying Party (in any such action and which case the Indemnifying Party will not have the right to participate therein, but assume the fees and expenses defense of such counsel employed by Action on 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 Indemnitee's behalf); (iii) the Indemnifying Party does not assume employ counsel satisfactory to the defense or prosecution Indemnitee to represent the Indemnitee within a reasonable time after the Indemnitee's notice of a claim as provided above within thirty such Action; (30iv) 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 prior written consent. Whether or not the Indemnifying Party chooses denies or fails to so timely admit its obligation to defend or prosecute such claim, all and indemnify the parties hereto shall cooperate Action; or (v) in the defense reasonable opinion of counsel to the Indemnitee, the claim could result in the Indemnitee becoming subject to injunctive relief or prosecution thereof and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Party.relief other than

Defense. If the facts pertaining The Indemnifying Party shall be entitled to a loss arise out of 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 “Indemnifying Party” may assume the defense and control of any action giving rise to an Indemnified Party's claim for indemnification under Article XI unless (x) the Indemnified Party reasonably believes an adverse determination with respect to the action, lawsuit, investigation, proceeding or other claim giving rise to such claim for indemnification is likely to be materially detrimental to or materially injure the prosecution thereof by prompt written notice Indemnified Party's future business prospects or (y) the claim seeks an injunction or equitable relief against the Indemnified Party that is likely to have a material adverse effect on the business of the Indemnified Party, including the employment of counsel or accountants, at its cost and expensetaken as a whole. The Indemnified Party shall have the right to employ counsel separate from counsel employed by If the Indemnifying Party assumes the defense of any Indemnifiable Claim, it shall retain experienced counsel reasonably satisfactory to the Indemnified Party and the Indemnified Party may participate in any the defense of such action claim and to participate therein, but employ counsel of its choice for such purpose; provided that the fees and expenses of such separate counsel employed shall be borne by the Indemnified Party (other than any fees and expenses of such separate counsel that are incurred prior to the date the Indemnifying Party effectively assumes control of such defense). If the Indemnifying Party does not assume such defense, the Indemnified Party may compromise or settle the claim on behalf of and for the account and risk of the Indemnifying Party, who shall be bound by the result; provided, however, that the Indemnifying Party (i) shall be responsible only for the reasonable costs of defense and (ii) shall be entitled to participate (at their expense. The its cost and with counsel of its choice) in the defense of any Action in which the Indemnified Party retained the defense thereof under clause (x) or (y) of the first sentence of this Section 11.3(b); and provided further, that the Indemnifying Party shall not be liable for any settlement or compromise of any such claim Action of which the Indemnified Party has retained the defense, that is effected without its prior written consent, consent (which consent 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 prior written consent. Whether or not the 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Partywithheld unreasonably).

Defense. If The Indemnifying Party shall have the facts pertaining right, at its option (subject to a loss arise out of the claim of any third partylimitations set forth in Section 7.2(c) below) and at its own expense, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the “Indemnifying Party” may assume the defense or the prosecution thereof by prompt written notice to the Indemnified PartyParty to assume the entire control of, including subject to the employment right of counsel or accountants, the Indemnified Party to participate (at its cost expense and expensewith counsel of its choice) in, the defense, compromise or settlement of the Third Party Claim as to which such Notice of Claim has been given, and shall be entitled to appoint a recognized and reputable counsel reasonably acceptable to the Indemnified Party to be the lead counsel in connection with such defense. The If the Indemnifying Party is permitted and elects to assume the defense of a Third Party Claim: (i) the Indemnifying Party shall diligently and in good faith defend such Third Party Claim and shall keep the Indemnified Party reasonably informed of the status of such defense; provided, however, that the Indemnified Party shall have the right to employ counsel separate from counsel employed by approve any settlement, which approval will not be unreasonably withheld, delayed or conditioned; provided, that, in the event that the Indemnifying Party provides prior written notice to the Indemnified Party of any settlement or compromise of, or offer to settle or compromise, any Third Party Claim in full and the Indemnified Party withholds its consent to such settlement or compromise then, in the event indemnification is ultimately determined to be owing to an Indemnified Party hereunder with respect to such Third Party Claim, in no event shall indemnification be provided to such Indemnified Party in respect of such Third Party Claim in an amount greater than the amount contained in such settlement or compromise of, or offer to settle or compromise, such Third Party Claim; and (ii) the Indemnified Party shall cooperate fully in all respects with the Indemnifying Party in any such action defense, compromise or settlement thereof, including, without limitation, the selection of counsel, 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 make available to 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 prior written consent. Whether or not the 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, pertinent information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Partydocuments under its control.

Defense. If the facts pertaining relating to a loss Loss arise out of the claim of any third partya Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the “Indemnifying Party” may Indemnity Obligor shall, by giving written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, assume the defense or the prosecution thereof by prompt written notice to the Indemnified Partythereof, 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 Indemnifying Party Indemnity Obligor 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 the Indemnified Party's own expense. The Indemnifying , unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party shall not has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be liable 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 any settlement of any such claim effected without its prior written consentIndemnified Party to employ separate counsel, which shall not be unreasonably withheld; provided that if or (c) the Indemnifying Party does not Indemnity Obligor has failed to 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 action and employ counsel reasonably satisfactory 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 prior written consent. Whether or not the Indemnifying Party chooses to so defend Indemnity Obligor 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, testimony and shall attend such conferences, discovery proceedings, hearings, trials proceedings and appeals, trial as may be reasonably requested in connection therewith. The Indemnifying 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 all rights and remedies shall stand in the place of the Indemnifying 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 Subject to the facts pertaining remaining provisions hereof, the Indemnifying Party may, upon receipt of a Claim Notice relating to a loss arise out Third Party Claim and at its expense, defend such claim in its own name or, if necessary, in the name of the claim of any third party, or if there is any claim against a third party Claiming Party. The Claiming Party will cooperate with and make available by virtue to the Indemnifying Party such assistance and materials as may be reasonably requested of the circumstances of the Loss, the “Indemnifying Party” may assume the defense or the prosecution thereof by prompt written notice to the Indemnified Claiming Party, including and the employment of counsel or accountantsClaiming Party shall have the right, at its cost and expense, to participate in but not control the defense thereof. The Indemnified Indemnifying Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action settle 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 compromise any such claim effected without its prior written consentwith respect to which it controls the defense only with the consent of the Claiming Party, which consent shall not be unreasonably withheld; provided that if . If the proceeding involves a matter solely of concern to the Claiming Party in addition to the claim for which indemnification under this Article X is being sought, the Claiming Party shall have the right to control the defense and settlement of such additional claim in its own discretion and with its own counsel. If a firm written offer is made to settle any such Third Party Claim which offer includes a complete release of the Claiming Party and its affiliates from any further liability in respect thereof and the Indemnifying Party does not assume proposes to accept such settlement and agrees in writing to indemnify the defense or prosecution of a claim as provided above within thirty Claiming Party for all Losses related thereto and the Claiming Party refuses to consent to such settlement, then: (30i) 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 prior written consent. Whether or not the 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to excused from, and the Claiming Party shall be solely responsible for, all rights and remedies further defense of such Third Party Claim; (ii) the maximum liability of the Indemnifying Party relating to such Third Party Claim shall be the amount of the proposed settlement if the amount thereafter recovered from the Claiming Party on such Third Party Claim is greater than the amount of the proposed settlement; and (iii) the Claiming Party shall pay all attorneys' fees and legal costs and expenses incurred after the rejection of such settlement by the Claiming Party, but if the amount thereafter recovered by such third party from the Claiming Party is less than the amount of the proposed settlement, the Claiming Party shall be reimbursed by the Indemnifying Party for such attorneys' fees and legal costs and expenses up to a maximum amount equal to the difference between the amount recovered by such third party and the amount of the proposed settlement.

Defense. (a) If the facts pertaining to a loss Loss arise out of 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 “Indemnifying Party” may Indemnity Obligor may, by giving written notice to the Indemnified Party within thirty (30) days following its receipt of the notice of such claim, elect to assume the defense or the prosecution thereof by prompt written notice to the Indemnified Partythereof, including the employment of counsel or accountants, 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 Indemnifying Party Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel employed shall be not be considered a Loss and shall be at the Indemnified Party’s own expense unless (A) the counsel selected by the Indemnity Obligor shall be unwilling or unable to represent the Indemnified Party, or (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 at their expense. The Indemnifying Party shall not be liable a Loss for any settlement of any such claim effected without its prior written consent, which shall not be unreasonably withheld; indemnity is provided that if by the Indemnifying Party does not assume the defense or prosecution of a claim as provided above within thirty Indemnity Obligor. (30c) 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 prior written consent. Whether or not the Indemnifying Party Indemnity Obligor chooses so 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, hearings, proceedings and trials and appeals, 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 Indemnifying 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 claim, the Indemnity Obligor shall be subrogated to all rights and remedies shall stand in the place of the Indemnifying PartyIndemnified 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, and the reasonable fees and expenses incurred by the Indemnified Party in providing such cooperation shall also be a Loss for which indemnity is provided by the Indemnity Obligor.

Defense. If Except as otherwise provided herein, in the facts pertaining to a loss arise out of the claim case of any third partyclaim ------- asserted by a Person that is not a party to this Agreement (a "Third Party ----------- Claim"), an Indemnifying Party may elect to compromise or if there is any claim against a third party available by virtue of the circumstances of the Lossdefend, the “at such ----- Indemnifying Party” may assume the defense or the prosecution thereof 's own expense and by prompt written notice such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), including any Third Party Claim. If an Indemnifying Party elects to compromise or defend such Third Party Claim, it shall promptly notify the employment Indemnified Party and any other Indemnifying Parties of counsel or accountantsits intent to do so, and the Indemnified Party shall cooperate, at the expense of the applicable Indemnifying Party or Indemnifying Parties, in the compromise of, or defense against, such Third Party Claim. For so long as no Indemnifying Party elects to compromise or defend against the Third party Claim, fails to notify the Indemnified Party of its cost election to do so, 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 any applicable Indemnifying Party), compromise or defend such Third Party Claim (until such defense is assumed by an applicable Indemnifying Party) and expense(ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the applicable Indemnifying Party or Indemnifying Parties pursuant to the terms of this Agreement. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon the written advice of its counsel, that (iii) there is a conflict of interest between an applicable Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim or (iv) there are specific defenses available to the Indemnified Party which are different from or additional to those available to an applicable Indemnifying Party and which could be materially adverse to such Indemnifying Party, then the Indemnified Party shall have the right to employ assume and direct the defense of such Third Party Claim. In such an event, the applicable Indemnifying Party or Indemnifying Parties shall pay the reasonable fees and disbursements of their own counsel separate from and one counsel employed by to all the Indemnified Parties. Notwithstanding the foregoing, the Indemnifying Party in any shall not have the right to assume control of such action defense and to participate therein, but shall pay the fees and expenses of counsel retained by the Indemnified Party, if the claim over which the Indemnifying Party seeks to assume control (i) seeks non-monetary relief, (ii) involves criminal or quasi-criminal allegations, or (iii) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. In any event, except as otherwise provided herein, any applicable Indemnified Party and any Indemnifying Party that has any liability with respect to such counsel employed by claim may each participate, at its own expense, in the defense of such Third Party Claim without, in the case of such Indemnified Party, any right to control such defense. If an Indemnifying Party chooses to defend any claim, the Indemnified Party shall be at their expense. The make available to such Indemnifying Party shall not be liable any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for any settlement such defense, subject to the receipt 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 prior written consent. Whether or not the 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Partyappropriate confidentiality agreements.

Defense. If the facts pertaining to a loss Loss arise out of 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 “Indemnifying Party” may 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 by prompt written notice to the Indemnified Partyof such claim, including the employment of counsel or accountants, accountants at its cost and expense. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party Indemnity Obligor in any such action and to participate thereinin such action, but the fees and expenses of such counsel employed shall be at the Indemnified Party's own expense, unless (a) the Indemnity Obligor failed to assume the defense or prosecution thereof 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, in which case the fees and expenses of counsel selected by the Indemnified Party shall be at their expensethe 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 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 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 Indemnity Obligor; and (iii) the Indemnified Party will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, the filing of any answer by the Indemnity Obligor 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 a claim hereunder. Whether or not the Indemnity Obligor chooses so to defend or prosecute such claim, all the parties to this Agreement shall cooperate in the defense or prosecution of such claim and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trials as may be reasonably requested in connection therewith. The Indemnifying Party Indemnity Obligor 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 prior written consent. Whether or not the 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Party.

Defense. If Subject to the facts pertaining to limitations set forth in this Section 10.5(b), in the event of a loss arise out of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the LossThird Party Claim, the “Indemnifying Party” may assume Party shall have the defense or the prosecution thereof right (exercisable by prompt written notice to the Indemnified Party within ten (10) days after the Indemnified Party has given a Claim Notice of the Third Party Claim) to elect to conduct and control, through counsel of its choosing that is reasonably acceptable to the Indemnified Party and at the Indemnifying Party’s sole cost and expense, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall provide indemnification to the Indemnified Party in respect thereof, and (ii) if requested by the Indemnified Party, including has provided evidence reasonably satisfactory to the employment Indemnified Party of the Indemnifying Party’s financial ability to pay any Damages resulting from the Third Party Claim; provided, however, that the Indemnified Party may participate therein through separate counsel or accountants, chosen by it and at its sole cost and expense. The 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 that use of counsel selected by the Indemnifying Party to represent the Indemnified Party would present such counsel with an actual or potential conflict of interest, or (D) the Third Party Claim is for injunctive, equitable or other non-monetary relief against the Indemnified Party, then in each such case the Indemnified Party shall have the right to employ control the defense, compromise or settlement of the Third Party Claim with counsel separate of its choice at the Indemnifying Party’s sole cost and expense. In connection with any Third Party Claim, from counsel employed by and after delivery of a Claim Notice, the Indemnifying Party in any such action and to participate therein, but the fees and expenses of such counsel employed by the Indemnified Party shall, and shall be at cause their expense. The Indemnifying Party shall not be liable for any settlement of any such claim effected without its prior written consentrespective Affiliates and representatives to, which shall not be unreasonably withheld; provided that if the Indemnifying Party does not assume cooperate fully in connection with the defense or prosecution of a claim as provided above within thirty (30) days after notice thereofsuch Third Party Claim, 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 prior written consent. Whether or not the 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 including furnishing such records, information and testimony, testimony and attend attending such conferences, discovery proceedings, hearings, trials and appeals, appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. The Indemnifying In addition, the party controlling the defense of any Third Party Claim shall be subrogated to all rights and remedies keep the non-controlling party advised of the Indemnifying Partystatus thereof and shall consider in good faith any recommendations made by the non-controlling party with respect thereto.

Defense. If Upon receipt of notice under Section 8.3.1 from the facts pertaining Indemnitee, the Indemnifying Party shall have the duty to a loss arise out either compromise or defend, at its own expense and by counsel (reasonably satisfactory to Indemnitee, such Action. The Indemnifying Party shall promptly and in any event not more than twenty (20) days after receipt of the claim Indemnitee's original notice) notify the Indemnitee in writing that it wishes to assume control of the Action pursuant to this Article 8 and of its intention to either compromise or defend such Action. The assumption of the defense of an Action by the Indemnifying Party shall not be construed as an acknowledgement that the Indemnifying Party is liable to indemnify the Indemnitee in respect of the Action, nor shall it constitute a waiver by the Indemnifying Party of any third party, or if there is defenses it may assert against any Indemnified Party's claim against a third party available by virtue of for indemnification. Once the circumstances of the Loss, the “Indemnifying Party” may assume the defense or the prosecution thereof by prompt written Party gives such notice to the Indemnified PartyIndemnitee, including the employment Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or accountantsany other expenses subsequently incurred by the Indemnitee in connection with such defense, at its cost other than the Indemnitee's reasonable costs of investigation and expensecooperation. The Indemnified Party However, the Indemnitee shall have the right to employ separate counsel separate from and to control the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses of such counsel) if: (a) the use of the counsel employed chosen by the Indemnifying Party in any such action and to participate therein, but the fees and expenses of would present such counsel employed by with a conflict of interest; (b) the Indemnified actual or potential defendants in, or targets of, such Action include both the Indemnifying Party shall and the Indemnitee, and the Indemnitee reasonably concludes that there may be at their expense. The legal defenses available to it that are different from or additional to those available to the Indemnifying Party (in which case the Indemnifying Party shall not be liable for any settlement have the right to assume the defense of any such claim effected without its prior written consent, which shall not be unreasonably withheld; provided that if Action on the Indemnitee's behalf); (c) the Indemnifying Party does not assume employ counsel reasonably satisfactory to the defense or prosecution Indemnitee to represent the Indemnitee within a reasonable time after the Indemnitee's notice of a claim as provided above within thirty such Action; or (30d) days after notice thereofin the reasonable opinion of counsel to the Indemnitee, the Indemnified Party may settle such claim without could result in the Indemnifying Party’s consent. The Indemnifying Party shall not agree Indemnitee becoming subject to a settlement of any claim which provides for any injunctive relief or relief other than the payment of monetary damages or which Losses that could have a material precedential impact or materially adverse effect on the ongoing business or financial condition of any Indemnified Party without the Indemnified Party’s prior written consent. Whether or not Indemnitee; provided, however, that in no event shall the Indemnifying Party chooses be obligated to so defend or prosecute such claimbear the fees, costs and expenses of more than one (1) separate counsel for all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying other Party's Indemnitees in such Action.

Defense. If the facts pertaining to a loss arise out any of the claim of indemnified parties is made or threatened ------- to be made a defendant in or party to any action or proceeding, judicial or administrative, instituted by any third party for the liability under which or the costs or expenses of which any of the indemnified parties is entitled to be indemnified pursuant to Section 10 (any such third party action or proceeding being referred to as an "Indemnification Claim"), the indemnified party or parties shall give prompt notice thereof to the indemnifying party; provided -------- that the failure to give such notice shall not affect the indemnified party or parties' ability to seek indemnification hereunder unless such failure has materially and adversely affected the indemnifying party or parties' ability to prosecute successfully an Indemnification Claim. Each indemnified party shall permit the indemnifying party, or if there is any claim against a third party available by virtue of the circumstances of the Lossat its own expense, the “Indemnifying Party” may to assume the defense or the prosecution thereof by prompt written notice to the Indemnified Party, including the employment of counsel or accountants, at its cost and expense. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the 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 or any litigation to which this Section 10(d) may be applicable, by counsel reasonably satisfactory to the indemnified party or parties; provided, -------- that the indemnified party or parties shall be entitled at any time, at its prior written consent, or their own cost and expense (which expense shall not be unreasonably withheld; provided that if recoverable from the Indemnifying Party does indemnifying party unless the indemnifying party is not assume the defense or prosecution adequately representing or, because of a claim as provided above within thirty (30) days after notice thereofconflict of interest, may not adequately represent, the Indemnified Party may settle such claim without the Indemnifying Party’s consent. The Indemnifying Party shall not agree indemnified party or parties' interests), 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 prior written consent. Whether or not the Indemnifying Party chooses to so defend or prosecute participate in 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 elects to participate in such defense, such party or parties will cooperate with the indemnifying party in the conduct of such defense. The indemnified party or parties may not concede, settle or compromise any Indemnification Claim without the consent of the indemnifying party. The indemnifying party, in the defense of any such claim or prosecution 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. If the Indemnification Claim arises under Section 10(b)(iii), the indemnifying party shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested defend the third party claim in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies the name of the Indemnifying Partyindemnifying party and pay any amounts to be indemnified under such section directly to the claiming party.

Defense. If the facts pertaining In connection with any claim which may give rise to a loss arise indemnity hereunder resulting from or arising out of the claim of any third party, or if there is any claim against 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 “Indemnifying Party” may assume sole cost and expense of the defense or the prosecution thereof by prompt Stockholders), may, upon written notice to the Indemnified Party, including assume the employment defense of counsel any such claim or accountants, at its cost and expense. The Indemnified Party shall have the right to employ counsel separate from counsel employed by legal proceeding if the Indemnifying Party in any such action and acknowledges to participate therein, but the fees and expenses of such counsel employed by the Indemnified Party in writing the obligation of the Indemnifying Party (or in the case of the Stockholders' Representative, the Stockholders) to indemnify the Indemnified Party with respect to all elements of such claim. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall be select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at their expensethe 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 be liable for consent to a settlement of, or the entry of any settlement of judgment arising from, any such claim effected or legal proceeding, without its the prior written consent, consent of the Indemnified Party (which consent shall not be unreasonably withheld; provided that if withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or prosecution of a claim as provided above litigation resulting therefrom within thirty (30) 30 days after notice thereof, the date such claim is made: (a) the Indemnified Party may settle defend against such claim without or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party’s consent. The Indemnifying Party shall not agree to a settlement of any claim which provides for any relief other than , on such terms as 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 prior written consent. Whether or not the 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 testimonymay deem appropriate, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The (b) the Indemnifying Party shall be subrogated entitled to all rights participate in (but not control) the defense of such action, with its counsel and remedies at its own expense (or in the case of the Stockholders' Representative, at the expense of the Stockholders). If the Indemnifying PartyParty (or, in the case of the Stockholders' Representative, the Stockholders) thereafter seeks to question the manner in which the Indemnified Party defended such third party claim or the amount or nature of any such settlement, the Indemnifying Party (or, in the case of the Stockholders, the Stockholders' Representative) shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.

Defense. If The indemnifying party will be entitled to participate in, and to ------- the facts pertaining extent that it may elect by written notice delivered to a loss arise out of the claim indemnified party promptly after receiving the notice described in Section 6.6, to assume the defense of any third party claim, action or suit, with counsel satisfactory to such indemnified party; but, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party has reasonably concluded that there may be legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, the indemnified party or if there is any claim against a third parties will have the right to select separate counsel to assert such legal defenses and otherwise to participate in the defense of such action on behalf of such indemnified party available by virtue or parties. Upon receipt of notice from the circumstances indemnifying party to such indemnified party of the Loss, the “Indemnifying Party” may its election so to assume the defense or of such action and approval by the prosecution 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 by prompt written notice unless (a) the indemnified party has employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to the Indemnified Partynext preceding sentence, including (b) the indemnifying party has not employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the suit, action or proceeding or (c) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party; and except that, if clause (a) or accountants(c) is applicable, at its cost and expensesuch liability will be only in respect of the counsel referred to in such clause (a) or (c). The Indemnified Party shall have the right indemnifying party will not agree to employ counsel separate from counsel employed by the 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 consenta third party claim, which shall not be unreasonably withheld; provided action or suit that if the Indemnifying Party does not assume include a full release of any further liability on the defense or prosecution party 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 consentindemnified party with respect to all matters at issue. The Indemnifying Party shall indemnifying party will not agree to a any settlement of a third party claim, action or suit without the indemnified party's written consent; but the indemnified party will not unreasonably withhold its consent to any claim which provides settlement solely for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on to be paid by the business or financial condition of any Indemnified Party without the Indemnified Party’s prior written consent. Whether or not the 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Partyindemnifying party.

Defense. If the facts pertaining to a loss Loss by a Buyer Indemnified Party or a Company Indemnified Party, as the case may be, arise out of 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 “applicable Indemnifying Party” Party may assume the defense or the prosecution thereof by prompt written notice to the such Buyer Indemnified Party or Seller Indemnified Party, including the employment of counsel or accountantsaccountants reasonably satisfactory to such Buyer Indemnified Party or Seller Indemnified Party, at its the Indemnifying Party's cost and expense. The Such Buyer Indemnified Party or Seller Indemnified Party shall have the right to employ counsel separate from counsel employed by the such Indemnifying Party in any such action and to participate therein, but the fees and expenses of such counsel employed by the such Buyer Indemnified Party or Seller Indemnified Party shall be at their 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; 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 without the payment prior written consent of monetary damages or which could have a material precedential impact or effect on the business or financial condition of any Buyer Indemnified Party without the or Seller Indemnified Party’s prior written consent, as the case may be, which consent will not be unreasonably withheld. Whether or not the 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, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Buyer Indemnified Party or Seller Indemnified Party, as the case may be.

Defense. If the facts pertaining any civil or administrative action that might reasonably be expected to a loss arise out of the claim of any third party, result in an Indemnifiable Claim (an "Action") is asserted or if there is any claim against threatened by a third party available by virtue of the circumstances of the Lossagainst any Indemnified Party, the “Indemnifying Party may elect to control the defense thereof with experienced counsel reasonably satisfactory to the Indemnified Party. Notwithstanding the foregoing, if the Indemnifying Party” may assume the defense or the prosecution thereof by prompt , within fifteen (15) days after receipt of a notice of such Action, fails to give written notice to the Indemnified PartyParty that the Indemnifying Party is undertaking the defense thereof or thereafter fails to timely assume such defense, including then the employment of counsel or accountants, at its cost and expense. The Indemnified Party shall have the right to employ counsel separate from counsel employed defend, compromise or settle the Action for the account of the Indemnifying Party. An assertion by the Indemnifying Party of a reservation of rights with respect to such Action shall not constitute a failure to give written notice that it shall undertake such defense. If the Indemnifying Party assumes control of the defense in any such action and to participate thereinan Action, but it will take all steps necessary in the fees and expenses defense, prosecution, or settlement of such counsel employed claim or litigation and will hold the Indemnified Party harmless from and against all Losses caused by or arising out of such Action. The Indemnifying Party will not consent to the entry of any judgment or enter into any settlement except with the written consent of the Indemnified Party; provided, however, that the consent of the Indemnified Party shall not be required if all of the following conditions are met: (i) the terms of the judgment or proposed settlement include as an unconditional term thereof the giving to the Indemnified Party by the third party of a release of the Indemnified Party from all liability in respect of such Action; (ii) there is no finding or admission of (A) any violation of law by the Indemnified Party shall (or any affiliate thereof), and (B) any violation of the rights of any other person; (iii) the judgment or settlement will have no effect on any other Action or claims of a similar nature that may be at their expensemade against the Indemnified Party (or any affiliate thereof); and (iv) the sole form of relief is monetary damages which are paid in full by the Indemnifying Party. The Indemnifying Party shall conduct the defense of the Action actively and diligently, and the Indemnified Party will provide reasonable cooperation in the defense of the Action. In all cases, the party that is not be liable for any settlement assigned the right to control the defense shall have the right to participate in the defense of any such claim effected without the Action at its prior written consentown expense, which shall not be unreasonably withheld; provided that if subject to the reasonable direction of the other party. Each of the Indemnifying Party does not assume and the defense or prosecution of a claim as provided above within thirty (30) days after notice thereofIndemnified Party shall give all reasonable assistance to the other party in connection therewith. In any case, the Indemnified Party may settle such claim without the Indemnifying Party’s consent. The Indemnifying Party shall not agree shall, subject 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 prior written consent. Whether or not Section 12.5, make available to the Indemnifying Party chooses to so defend or prosecute such claimand its attorneys, accountants, employees, agents, advisors and consultants, at reasonable times during normal business hours, all books, records, documents, employees, agents, advisors and consultants under its control and relating to such Action or such other matter as to which the parties hereto shall cooperate in Indemnified Party is or was required to give notice. The party having control of the defense of an Action shall notify the other party of every proposal, oral or prosecution thereof and shall furnish such recordswritten, information and testimonyfor settlement, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Partywhich it receives or makes.

Defense. If (a) Promptly after the facts pertaining receipt by any person entitled to a loss arise out indemnification under Section 9.2 or 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 of with respect thereto is made against any third party, party obligated to provide indemnification pursuant to Section 9.2 or if there is any claim against a third party available by virtue of 9.3 herein (the circumstances of the Loss, the “"Indemnifying Party” may "), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the prosecution thereof by prompt written notice to action or proceeding seeks an injunction or other similar relief against the Indemnified Party, including Aggrieved Party or there is a conflict of interest between it and the employment Indemnifying Party in the conduct of counsel or accountants, at its cost and expensethe defense of such action. The Indemnified Party shall have the right to employ counsel separate from counsel employed Failure by the Indemnifying Party in 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 participate thereinholding the Aggrieved Party harmless from and against any losses, but 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 fees and expenses defense of such counsel employed by claim or litigation provided that the Indemnified Indemnifying Party shall be at their expensedirect 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 be liable for any settlement assume the defense of any such claim effected 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 Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without its prior written consentthe consent of the Indemnifying Party, which consent shall not be unreasonably withheld; provided that if . If no settlement of the claim or litigation is made, the Indemnifying Party does not assume shall promptly reimburse the defense or prosecution Aggrieved Party for the amount of a claim as provided above within thirty (30) days after notice thereof, the Indemnified Party may settle any judgment rendered with respect to such claim without or in such litigation and of all expenses, legal or otherwise, as incurred by the Indemnifying Party’s consent. The Indemnifying Aggrieved 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 prior written consent. Whether or not the Indemnifying Party chooses to so defend or prosecute such claim, all the parties hereto shall cooperate in the defense against such claim or prosecution thereof and litigation. (d) The rights to indemnification hereunder shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated apply to all rights and remedies claims made by either party against the other whereby written notice of the Indemnifying Partyclaim has been made and delivered within the period of the applicable statute of limitations.

Defense. The Indemnifying Party shall have the right to direct, through counsel of its own choosing, the defense or settlement of any action or proceeding brought against the Indemnified Party in respect of Third Party Claims; provided, however, that the 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 or, regardless of the terms of such settlement, if the Indemnifying Party disputes its liability with respect to the Third Party Claim. If the facts pertaining Indemnifying Party elects to a loss arise out of 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 “Indemnifying Party” may assume the defense of any such claim or the prosecution thereof by prompt written notice to proceed ing, the Indemnified Party, including the employment of counsel or accountants, Party may participate in such defense at its cost and own expense. The 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 of its own choosing, the 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 in and consent (which consent shall not be unreasonably withheld) to the settlement or assume or reassume the defense of such claim or proceeding. Notwithstanding the foregoing provisions of this Section 10.3(b), if the 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 the Indemnified Party's defense pursuant to this Section 10.3(b), and the Indemnified Party shall reimburse the Indemnifying Party in full for all costs and expenses incurred by the Indemnifying Party in any con nection with such action and to participate therein, but the fees and expenses of such counsel employed by the Indemnified Third Party shall be at their expenseClaim. 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 party directing the defense or prosecution of a claim as provided above within thirty (30) days after notice thereof, the Indemnified Party may settle shall pursue such claim without the Indemnifying Party’s consentdefense diligently and promptly. 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 prior written consent. Whether or not the Indemnifying Party chooses to so defend or prosecute such claim, all the parties hereto shall cooperate in the defense shall pursue such defense diligently and promptly. The parties shall cooperate in 48 57 the defense of all Third Party Claims. In connection with the defense of any Third Party 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 attend such conferences, discovery proceedings, hearings, trials and appeals, as may be other documents within its control that are reasonably requested in connection therewith. The Indemnifying Party shall be subrogated the course of or necessary or appropriate for such defense, provided appropriate arrangements are made to all rights and remedies safeguard the confidentiality of the Indemnifying Partysuch materials.

Defense. If Upon receipt of notice under Section 11.3.1 (Notice) from the facts pertaining Indemnitee, the Indemnifying Party will have the duty to a loss arise out 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, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the claim Securities Exchange Act of 1934, as amended. Party will promptly (and in any third party, or if there is any claim against a third party available by virtue event not more than [*] 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 11 (Indemnification; Insurance) and of its intention either to compromise or defend such Claim. Once the Loss, the “Indemnifying Party” may assume the defense or the prosecution thereof by prompt written Party gives such notice to the Indemnified PartyIndemnitee, including (a) the employment of counsel or accountants, at its cost and expense. The Indemnified Indemnifying Party shall will have the right to employ counsel separate from counsel employed by control the defense and settlement of such Claim, subject to this Section 11.3 (Indemnification Procedures) and (b) the Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee’s reasonable expenses of investigation and cooperation. Any Indemnitee will be entitled to participate in, but not control, the defense of any such action Claim and to participate therein, but the fees and expenses retain counsel of its choice for 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 withheldpurpose; provided that if such retention will be at the Indemnitee’s own cost and expense unless (i) the Indemnifying Party does not has failed to assume the defense or prosecution of a claim as provided above within thirty and retain counsel in accordance with this Section 11.3.2 (30Defense) days after notice thereof, (in which case the Indemnified indemnified Party may settle such claim without will control the defense at the Indemnifying Party’s consent. The Indemnifying Party shall not agree to a settlement cost and expense), or (ii) the interests 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 prior written consent. Whether or not Indemnitee and the Indemnifying Party chooses with respect to so defend such Claim are sufficiently adverse to prohibit the representation by the same counsel of both Parties under any legal requirement, ethical rules, 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 attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Partyequitable principles.

Defense. If (a) The Authority shall notify the facts pertaining to a loss arise out of 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 “Indemnifying Party” may assume the defense or the prosecution thereof by prompt Borrower no later than 20 entire Business Days after written notice to the Authority that any third party has brought any proceeding against an Indemnified Party that may result in an Indemnifiable Loss (a “Third Party Proceeding”). (b) When notice of a Third Party Proceeding is given to the Borrower at any time by an Indemnified Party, upon the Indemnified Party’s request the Borrower shall assume the investigation and defense, including the employment of counsel or accountants, at its cost and expense. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate therein, but the fees and expenses of such counsel employed selected by the Indemnified Party and reasonably acceptable to the Borrower, and shall be at their expense. The Indemnifying Party shall not be liable for any settlement pay all Litigation Expenses 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 related to the Third Party Proceeding. Upon assuming the defense of an Indemnified Party, the Borrower may litigate, compromise or settle such claim without the Indemnifying Third Party Proceeding for the Indemnified Party’s consent. The Indemnifying Party shall , except that the Borrower may not agree to a settlement of any claim which provides compromise or settle 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 an Indemnified Party without the Indemnified Party’s prior written consentapproval. Whether An Indemnified Party has no liability for any compromise or not the Indemnifying settlement of a Third Party chooses to so defend or prosecute such claim, all the parties hereto shall cooperate Proceeding made without its written approval. (c) Each Indemnified Party may employ separate counsel in any Third Party Proceeding and participate in the defense investigation and defense. The Borrower shall pay the reasonable fees and disbursements of separate counsel, except that a Depository Indemnified Party may employ separate counsel at the Borrower’s expense only if in the Depository Indemnified Party’s reasonable judgment common representation creates a conflict of interest or prosecution thereof if all parties commonly represented do not agree as to the action (or inaction) of counsel. (d) Notwithstanding clause (b) and shall furnish such records(c), information and testimonyalternatively, and attend such conferenceswhen notice of a Third Party Proceeding is given to the Borrower at any time by an Indemnified Party, discovery proceedings, hearings, trials and appeals, the Indemnified Party may engage the Attorney General as may be reasonably requested counsel in connection therewithwith the investigation and defense. The Indemnifying Party In that case, the Borrower shall be subrogated to pay all rights and remedies Litigation Expenses of the Indemnifying PartyIndemnified Party related to the Third Party Proceeding. Upon engaging the Attorney General, the Indemnified Party may litigate, compromise or settle the Third Party Proceeding, except that the Borrower has no liability for any compromise or settlement of a Third Party Proceeding made without the Borrower’s written approval. (e) If an Indemnified Party or the Authority fails to notify the Borrower of a Third-Party Proceeding no later than 20 entire business days after written notice to the Authority of the Third-Party Proceeding, the Borrower is not required to pay for any Litigation Expense the Indemnified Party incurs before the Indemnified Party gives notice to the Borrower.