Common use of Defense Clause in Contracts

Defense. Subject to the limitations set forth in this Section 10.5(b), in the event of a Third Party Claim, the Indemnifying Party shall have the right (exercisable by 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, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall provide indemnification to the Indemnified Party in respect thereof; provided, however, that the Indemnified Party may participate therein through separate counsel chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice of its election to conduct and control the defense of the Third Party Claim within such 15 day period, (B) the Indemnifying Party shall fail to conduct such defense diligently and in good faith, (C) the Indemnified Party shall reasonably determine on written advice of outside counsel that use 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 control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. In addition, the party controlling the defense of any Third Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect thereto.

Defense. Subject Except as otherwise provided herein, the Indemnifying Party may elect to pay, compromise or defend (with the expenses incurred by the Indemnifying Party in connection therewith for its own account) by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the limitations set forth in Indemnified Party), any Third Party Claim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, with the expense of the Indemnified Party being part of the Loss for which the Indemnified Party is entitled to indemnification pursuant to the terms of this Section 10.5(b)Agreement, in the event compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (i) the Indemnified Party may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim (until such defense is assumed by the Indemnifying Party) and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. However, if within 30 days of receiving a notification from the Indemnifying Party that the Indemnifying Party does not elect to defend a Third Party Claim, the Indemnified Party fails to notify the Indemnifying Party that the Indemnified Party is electing to pay, compromise or defend the claim or notifies the Indemnifying Party that it does not elect to pay, compromise or defend the claim, then the Indemnifying Party may elect to pay, compromise or defend the claim by such Indemnifying Party's own counsel (which counsel shall have the right (exercisable by written notice be reasonably satisfactory to the Indemnified Party), with the expenses incurred by the Indemnifying Party within ten (10) days after for the account of the Indemnified Party has given a Claim Notice but part of the Third Loss for which the Indemnified Party Claim) is entitled to elect indemnification pursuant to conduct and controlthe term by this Agreement. Notwithstanding the foregoing, through counsel of its choosing and at the Indemnifying Party’s sole cost and expense, the defense, compromise or settlement of the Third Party Claim if neither the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall provide indemnification to nor the Indemnified Party in respect thereofmay settle or compromise any claim over the objection of the other; provided, however, that (i) consent to settlement or compromise shall not be unreasonably withheld by the Indemnified Party may participate therein through separate counsel chosen by it and at its (ii) if the sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice settlement relief payable to a third party in respect 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 damages that are paid in each such case the Indemnified Party shall have the right to control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at full by the Indemnifying Party’s sole cost and expense. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and may settle such claim without the consent of the Indemnified Party. In any event, except as otherwise provided herein, the Indemnified Party shalland the Indemnifying Party may each participate, and shall cause their respective Affiliates and representatives toat its own expense, cooperate fully in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by . If the Indemnifying Party or chooses to defend any claim, the Indemnified Party in connection therewith. In additionshall 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 party controlling the defense receipt of any Third Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretoappropriate confidentiality agreements.

Defense. Subject to the limitations set forth in this Section 10.5(b)If any claim, in the event of a Third Party Claimdemand or liability is asserted by any third party against any Indemnified Party, the Indemnifying Party shall, upon the written request of the Indemnified Party, defend any actions or proceedings brought against the Indemnified Party in respect of matters embraced by the indemnity, but the Indemnified Party shall have the right (exercisable by 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, control the defense, compromise or settlement of the Third Party any Indemnifiable Claim if the Indemnifying Indemnified Party (i) has acknowledged chooses to do so, on behalf of and agreed in writing that, if for the same is adversely determined, account and risk of the Indemnifying Party who shall provide indemnification be bound by the result so obtained to the Indemnified Party in respect thereofextent provided herein; provided, however, that the Indemnified Party may participate therein through separate counsel chosen by it and at its sole cost and expenseshall not settle or compromise any Indemnifiable Claim without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoingIf, if (A) after a request to defend any action or proceeding, the Indemnifying Party shall not have given notice of its election neglects to conduct and control defend the defense of Indemnified Party, a recovery against the Third Party Claim within such 15 day period, (B) the Indemnifying Party shall fail to conduct such defense diligently and latter suffered by it in good faith, (C) is conclusive in its favor against the Indemnified Party shall reasonably determine on written advice of outside counsel that use of counsel selected by Indemnifying Party; provided, however, that, if the Indemnifying Party to represent has not received reasonable notice of the Indemnified Party would present such counsel with an actual action or potential conflict of interest, or (D) the Third Party Claim is for injunctive, equitable or other non-monetary relief proceeding against the Indemnified Party, then in each such case or is not allowed to control its defense, judgment against the Indemnified Party shall have the right to control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at is only presumptive evidence against the Indemnifying Party’s sole cost and expense. The parties shall cooperate in the defense of all third party claims which may give rise to Indemnifiable Claims hereunder. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. In addition, the party controlling the defense of any Third Party Claim claim, each party shall keep make available to the non-party controlling party advised such defense, any books, records or other documents within its control that are reasonably requested in the course of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretosuch defense.

Defense. Subject to the limitations set forth in this Section 10.5(b), in the event of a Third Party Claim, the The Indemnifying Party shall have the right (exercisable by 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, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall provide indemnification to the Indemnified Party in respect thereof; provided, however, that the Indemnified Party may participate therein through separate counsel chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice of its election to conduct assume and control the defense of the Third Party Claim within such 15 day periodat the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided that, (B) if the Indemnifying Party shall fail (a) fails to conduct such assume the defense diligently and in good faith, within thirty (C30) the Indemnified Party shall reasonably determine on written advice of outside counsel that use of counsel selected by days after the Indemnifying Party to represent the Indemnified Party would present receives notice of 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 from the Indemnified Party, (b) declines the right to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently prosecute the defense of such Third Party Claim, then in each such case the Indemnified Party shall have the right to assume the control of the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, the Indemnifying Party shall indemnify the Indemnified Party from and against any Losses incurred by the Indemnified Party in defending such Third Party Claim. In the event that the Indemnifying Party assumes the defense of a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentence, the Indemnifying Party shall have the right to control the defense, compromise or settlement defense of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and provided that the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully have the right to participate in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. In addition, the party controlling the defense of any Third Party Claim shall keep with counsel selected by it at the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretoIndemnified Party’s expense.

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

Defense. Subject to the limitations set forth in this Section 10.5(b10.6(b), in the event of a Third Party Claim, the Indemnifying Party shall have the right (exercisable by 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 controlcontrol the defense, through compromise or settlement of any Third Party Claim with counsel of its choosing choice 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; provided, however, that the Indemnified Party may participate therein through separate counsel chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (Ai) the Indemnifying Party shall not have given written notice (A) of its election to conduct and control the defense of the Third Party Claim within such 15 day period, and (B) that the Indemnifying Party shall fail to conduct such defense diligently and in good faithagrees, on behalf of all Indemnifying Parties, that the Third Party Claim is indemnifiable hereunder within thirty (30) days after the Indemnified Party has given notice thereof, (Cii) the Indemnified Party shall reasonably determine on written advice of in good faith, after consultation with its outside counsel counsel, that use of counsel selected by the Indemnifying Party to represent the Indemnified Party would present such counsel with an actual or potential a conflict of interestinterest or that the Indemnified Party has material defenses or counterclaims available to it that are not available to the Indemnifying Party (and that cannot be utilized by the Indemnifying Party on behalf of the Indemnified Party), (iii) the Indemnified Party is not reasonably diligently defending such Third Party Claim, (iv) solely with respect to any indemnification claim pursuant to Section 10.2(a) or Section 10.3(a) (other than with respect to a breach of a Fundamental Representation), the Losses sought and reasonably likely to be suffered or incurred in such Third Party Claim are reasonably expected to be more than two times the amount that the Indemnifying Party is potentially liable for with respect to such Third Party Claim taking into account Section 10.4(b) or (Dv) the Third Party Claim is for injunctive, equitable or other non-monetary injunctive relief against the Indemnified Party, then in each such case the Indemnified Party shall have the right to control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In connection with , not to exceed one law firm in the United States and one firm in any Third Party Claimforeign jurisdiction, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. In addition, the party controlling the defense of any Third Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretoif applicable.

Defense. Subject If any claim, demand or liability is asserted by any third party against any Indemnified Party, the Indemnifying Party shall be entitled to participate therein and defend any action or proceeding brought against the limitations set forth Indemnified Party in this Section 10.5(b)respect of matters embraced by the indemnity, in the event of a Third Party Claim, and the Indemnifying Party shall have the right (exercisable by 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, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall provide indemnification to the Indemnified Party in respect thereof; provided, however, that the Indemnified Party may participate therein through separate counsel chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice of its election to conduct and control the defense of the Third Party Claim within such 15 day period, (B) the Indemnifying Party shall fail subject to conduct such defense diligently and in good faith, (C) the Indemnified Party shall reasonably determine on written advice Party’s approval in writing of outside counsel that use of counsel selected by the Indemnifying Party. After notice from the Indemnifying Party to represent the Indemnified Party would present of its election to assume the defense of such counsel with an actual claim or potential conflict of interestaction, or (D) the Third Indemnifying Party Claim is shall not be liable to the Indemnified Party under this Section 11.3 for injunctive, equitable any reasonable legal or other non-monetary relief against expenses subsequently incurred by the Indemnified Party, then Party in each such case connection with the defense thereof other than reasonable costs of investigation. In any action defended by the Indemnifying Party the Indemnified Party shall have the right to control be represented by its own counsel at its own expense unless (1) the defense, compromise or settlement employment of the Third Party Claim with such counsel of its choice at shall have been authorized in writing by the Indemnifying Party’s sole cost ; 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 expenseexpenses shall be paid and advanced by the Indemnifying Party. In connection with addition, if the named parties to any Third such action, suit or proceeding (including any impleaded parties) shall include both such Indemnified Party Claimand Indemnifying Party, from and after delivery 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 a Claim Noticethe 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 shallmay participate in the defense of such action, suit or proceeding and such fees and expenses shall cause their respective Affiliates be paid and representatives toadvanced by the Indemnifying Party; it being understood, cooperate fully however, that the Indemnifying Party shall not, in connection with any one such action or separate but substantially similar or related actions in the defense same jurisdiction arising out of the same general allegations or prosecution circumstances, 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 Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party). The Indemnifying Party will not, without Indemnified Party’s written consent, settle or compromise any indemnifiable claim or consent to the entry of any judgment in respect thereof unless such settlement, compromise or consent includes an unconditional release of the Indemnified Party from all liability in connection therewithrespect of such indemnifiable claim. In addition, the party controlling The parties shall cooperate in the defense of any Third Party Claim shall keep the non-controlling all third party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretoclaims which may give rise to indemnifiable claims hereunder.

Defense. Subject If a Third Party Claim is made against an Indemnified Party, then the Indemnifying Party shall be entitled to the limitations set forth in this Section 10.5(b), participate in the event defense of the Third Party Claim and, if the Indemnifying Party so chooses, to assume the defense of the Third Party Claim. If the Indemnifying Party so elects to assume the defense of a Third Party Claim, then, for so long as the Indemnifying Party defends the Third Party Claim, the Indemnifying Party shall be deemed to have the right (exercisable by written notice acknowledged its indemnification obligations under this Article 1 with respect to the Indemnified Party within ten (10) days after the Indemnified Party has given a Claim Notice of the such Third Party Claim) to elect to conduct , and control, through counsel of its choosing and at the Indemnifying Party’s sole cost and expense, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall provide indemnification to the Indemnified Party in respect thereof; provided, however, that the Indemnified Party may participate therein through separate counsel chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice of its election be liable to conduct and control the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense of the Third Party Claim within such 15 day period, (B) Claim. If the Indemnifying Party shall fail to conduct assumes 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 Partydefense, then in each such case the Indemnified Party shall have the right to control participate in the defense, compromise or settlement defense of the Third Party Claim with and to employ counsel, at its own expense, separate from the counsel of its choice at employed by the Indemnifying Party, it being understood, however, that the Indemnifying Party shall control such defense, including any settlement or compromise of the Third Party Claim, provided that Parent shall not settle or compromise any Third Party Claim arising solely as a result of a breach of any representation or warranty for an amount in excess of Parent’s sole cost and expenseaggregate indemnification obligations under this Article 1, as set forth in Section 8.1(b)(iii), without Buyer’s written consent, which consent may not be unreasonably withheld, delayed or conditioned. In connection with If the Indemnifying Party chooses to defend any Third Party Claim, from then the Parties shall cooperate in the defense of the 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 the Third Party Claim and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided. If the Indemnifying Party, within a reasonable time after delivery receipt of an Indemnification Notice relating to a Third Party Claim, chooses not to assume defense of the Third Party Claim Noticeor at any time fails to defend the Third Party Claim actively and in good faith, then the Indemnified Party shall (upon further notice to the Indemnifying Party) have the right to undertake the defense of the Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense not be entitled to defend or prosecution of such settle a Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or will pay the reasonable attorneys’ fees and related out-of-pocket expenses of the Indemnified Party in connection therewith. In addition, the party controlling the defense of any defending or settling a Third Party Claim shall keep with respect to which the non-controlling party advised Indemnifying Party is obligated to provide indemnification hereunder, where the remedy sought is reasonably expected to have a Material Adverse Effect; provided, however, that in any such event the Indemnified Party will not settle the Third Party Claim without the prior written consent of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretoIndemnifying Party, which consent may not be unreasonably withheld, delayed or conditioned.

Defense. Subject Except as otherwise provided herein, the Indemnifying ------- Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such In demnifying Party's own counsel (which counsel shall be reasonably satisfactory to the limitations set forth in this Section 10.5(bIndemnified Party), in any Third Party Claim. If the event of a Indemnifying Party elects to compromise or defend such Third Party Claim, the Indemnifying Party shall have the right (exercisable by written notice to the Indemnified Party it shall, within ten (10) 30 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, the defense, compromise or settlement receiving notice of the Third Party Claim (10 days if the Indemnifying Party states in such notice that prompt action is required), notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (i) 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 chosen 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 it the Indemnifying Party) and at its sole cost (ii) the costs and expense. Notwithstanding expenses of the foregoing, if (A) Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party shall not have given notice pursuant to the terms of its election this Agreement. Notwithstanding anything to conduct and control the defense of the contrary contained herein, in connection with any Third Party Claim within such 15 day period, (B) the Indemnifying Party shall fail to conduct such defense diligently and in good faith, (C) which the Indemnified Party shall reasonably determine on written conclude, based upon advice of its outside counsel legal counsel, that use (x) there is a conflict of counsel selected by interest between the Indemnifying Party to represent and the Indemnified Party would present in the conduct of the defense of 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 (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 in each such case the Indemnified Party shall have the right to control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost assume and expense. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with direct the defense or prosecution of such Third Party Claim. In such an event, including furnishing the Indemnifying Party shall pay the reasonable fees and disbursements of counsel of the Indemnifying Party and one counsel to all the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim (however, if the sole settlement relief payable to a third party in respect of such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested Third Party Claim is monetary damages that are paid in full by the Indemnifying Party, the Indemnifying Party may settle such claim without the consent of the Indemnified Party) over the objection of the other; provided, however, that consent to -------- ------- settlement or compromise shall not be unreasonably withheld by the Indemnified Party. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in connection therewith. In addition, the party controlling the defense of any such Third Party Claim Claim. If the Indemnifying Party chooses to defend any claim, the Indemnified Party shall keep make available to the non-controlling party advised 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 the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretoappropriate confidentiality agreements.

Defense. Subject (a) The Indemnifying Party shall have the right, at its expense and at its election, to assume control of the limitations set forth in this Section 10.5(b)negotiation, in settlement and defense of the event Claim through counsel of a Third Party Claimits choice. In such event, the Indemnifying Party shall have the right (exercisable by written notice to reimburse the Indemnified Party within ten (10) days after for all the Indemnified Party has given Party's reasonable out-of-pocket expenses as a Claim Notice result of the Third Party Claim) to elect to conduct and control, through counsel such assumption. The election of its choosing and at the Indemnifying Party’s sole cost and expense, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party to assume such control shall be made within ninety (i90) has acknowledged and agreed in writing thatdays of receipt of notice of Claim, if the same is adversely determined, failing which the Indemnifying Party shall provide indemnification be deemed to the Indemnified Party in respect thereof; provided, however, that the Indemnified Party may participate therein through separate counsel chosen by it and at its sole cost and expensehave elected not to assume such control. Notwithstanding the foregoing, if (A) If the Indemnifying Party shall not have given notice of its election elects to conduct and control the defense of the Third Party Claim within assume such 15 day periodcontrol, (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 control be informed and consulted with respect to the defensenegotiation, compromise settlement or settlement defenses of such Claim and to retain counsel to act on its behalf, but the Third fees and disbursements of such counsel shall be paid by the Indemnified Party Claim with counsel of its choice at unless the Indemnifying Party’s sole cost and expense. In connection with Party consents to the retention of such counsel or unless the named parties to any Third Party Claim, from and after delivery of a Claim Notice, action or proceeding include both the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend the Claim within a reasonable period of time, the Indemnified Party shall be entitled to assume such control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to the Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, and shall cause their respective Affiliates and representatives toafter demand by the Indemnified Party, cooperate fully reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in connection with respect of which such payment was made, as finally determined, is less than the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested amount which was paid by the Indemnifying Party or to the Indemnified Party, the Indemnified Party in connection therewith. In additionshall, the party controlling the defense of any Third Party Claim shall keep the non-controlling party advised promptly after receipt of the status thereof and shall consider in good faith any recommendations made by difference from the non-controlling party with respect theretothird party, pay the amount of such difference to the Indemnifying Party.

Defense. Subject If any such action is brought against an indemnified party, the indemnifying Party will be entitled to participate in and to assume the defense thereof to the limitations set forth in this Section 10.5(b)extent that it may wish, in and after notice from the event indemnifying Party to such indemnified party of a Third Party Claimthe indemnifying Party’s election to assume the defense thereof, the Indemnifying Party shall have the right (exercisable by 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, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall provide indemnification to the Indemnified Party in respect thereof; provided, however, that the Indemnified Party may participate therein through separate counsel chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying indemnifying Party shall not have given notice of its election be liable 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 indemnified party for any legal or other expenses subsequently incurred 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 control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully latter in connection with the defense or prosecution thereof unless the indemnifying Party has failed to assume the defense of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by claim. Notwithstanding any of the Indemnifying Party or foregoing to the Indemnified Party in connection therewith. In additioncontrary, the indemnified party controlling will be entitled to select its own counsel and assume the defense of any Third action brought against it if the indemnifying Party Claim shall keep fails to assume such defense, the non-controlling expenses of such defense to be paid by the indemnifying Party. As a condition to the indemnifying Party’s obligations hereunder, the indemnified party advised of the status thereof and shall consider 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 recommendations made 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, delayed or conditioned, or (b) unless such judgment or settlement includes as an unconditional term thereof the giving by the non-controlling claimant or plaintiff to such indemnified party of a release from all liability with respect thereto.to such claim. No indemnified party shall consent to entry of any judgment or enter into any settlement of any such action, the defense of which has been assumed by an indemnifying Party, without the consent of such indemnifying Party, which consent shall not be unreasonably withheld. PURCHASE AND SALE AGREEMENT 35

Defense. Subject Except as otherwise provided herein, the Indemnifying ------- Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the limitations set forth in this Section 10.5(bIndemnified Party), in any Third Party Claim. If the event of a Indemnifying Party elects to compromise or defend such Third Party Claim, the Indemnifying Party shall have the right (exercisable by written notice to the Indemnified Party it shall, within ten (10) 30 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, the defense, compromise or settlement receiving notice of the Third Party Claim (10 days if the Indemnifying Party states in such notice that prompt action is required), notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the third Party Claim, or fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (i) 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 chosen 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 it the Indemnifying Party) and at its sole cost (ii) the costs and expense. Notwithstanding expenses of the foregoing, if (A) Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party shall not have given notice pursuant to the terms of its election this Agreement. Notwithstanding anything to conduct and control the defense of the contrary contained herein, in connection with any Third Party Claim within such 15 day period, (B) the Indemnifying Party shall fail to conduct such defense diligently and in good faith, (C) which the Indemnified Party shall reasonably determine on conclude, based upon the written advice of outside counsel its counsel, that use (x) there is a conflict of counsel selected by interest between the Indemnifying Party to represent and the Indemnified Party would present in the conduct of the defense of 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 (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 in each such case the Indemnified Party shall have the right to control assume and direct the defense, compromise or settlement defense of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In connection with any such Third Party Claim, from and after delivery of a Claim Notice. In such an event, the Indemnifying Party shall pay the reasonable fees and disbursements of counsel of the Indemnifying Party and one counsel to all the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party shallmay settle or compromise any claim over the objection of the other, provided, however, that -------- ------- consent to settlement or compromise shall not be unreasonably withheld by the Indemnified Party and shall cause their respective Affiliates provided, further, that 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 representatives to, cooperate fully such settlement includes an unconditional term releasing the Indemnified Party from all liability in connection with the defense or prosecution respect of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or may settle such claim without the consent of the Indemnified Party. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in connection therewith. In addition, the party controlling the defense of any such Third Party Claim Claim. If the Indemnifying Party chooses to defend any claim, the Indemnified Party shall keep make available to the non-controlling party advised 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 the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretoappropriate confidentiality agreements.

Defense. Subject In the case of a Claim involving the assertion of a claim by a third party (whether pursuant to a lawsuit or other legal action or otherwise, a “Third-Party Claim”), the Indemnifying Party may, upon written notice to the limitations set forth Indemnified Party, take control of the defense and investigation of such Third-Party Claim if the Indemnifying Party acknowledges to the Indemnified Party in this Section 10.5(b), in writing the event obligation of a Third 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 the right (exercisable by written notice select counsel reasonably acceptable to the Indemnified Party within ten (10and separate from counsel to the Indemnifying Party if there is any conflict or divergence of interest between the Indemnifying Party and the Indemnified Party) days after to conduct the defense of such claims or legal proceedings and, at the sole cost and expense of the Indemnifying Party, shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of or the entry of any judgment arising from any such Third-Party Claim without the prior written consent of the Indemnified Party has given a Claim Notice (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of the Third any such Third-Party Claim) to elect to conduct and control, through with its own counsel of its choosing and at the Indemnifying Party’s sole cost and its own expense, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall provide indemnification to the Indemnified Party in respect thereof; provided, however, that the Indemnified Party 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 of such Third-Party Claim within thirty (30) days after the Indemnifying Party receives notice of such claim from the Indemnified Party: (a) the Indemnified Party may participate therein through separate counsel chosen by defend against such Third-Party Claim in such manner as it may deem reasonably appropriate, provided that the Indemnified Party shall not consent to a settlement of or the entry of any judgment arising from such Third-Party Claim without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed); and at its sole cost and expense. Notwithstanding the foregoing, if (Ab) the Indemnifying Party shall be entitled to participate in (but not have given notice control) the defense of such action, with its election to conduct counsel and control at its own expense. Regardless of which Party shall assume 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 nonThird-monetary relief against the Indemnified Party, then in each such case the Indemnified Party shall have the right to control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, Parties agree to cooperate fully in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party one another in connection therewith. In addition, Such cooperation shall include the party controlling the defense providing of records and information which are relevant to such Third-Party Claim and making employees and officers available on a mutually convenient basis to provide additional information and explanation of any Third material provided hereunder and to act as a witness or respond to legal process, in each case to the extent that the Party Claim shall keep the non-controlling party advised of the status thereof being requested to provide records and shall consider in good faith information or to make employees and officers available can do so without waiving any recommendations made by the non-controlling party with respect theretoevidentiary privileges to which it is entitled.

Defense. Subject Except as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the limitations set forth in this Section 10.5(bIndemnified Party), in any Third Party Claim. If the event of a Indemnifying Party elects to compromise or defend such Third Party Claim, the Indemnifying Party shall have the right (exercisable by written notice to the Indemnified Party it shall, within ten (10) 30 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, the defense, compromise or settlement receiving notice of the Third Party Claim (10 days if the Indemnifying Party (i) has acknowledged states in such notice that prompt action is required), notify the Indemnified Party of its intent to do so, and agreed the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in writing thatthe compromise of, if the same is adversely determinedor defense against, such Third Party Claim. If the Indemnifying Party shall provide indemnification elects not to compromise or defend against the third Party Claim, or fails to notify the Indemnified Party in respect thereof; of its election to do so as herein provided, howeveror otherwise abandons the defense of such Third Party Claim, that (A) the Indemnified Party may participate therein through separate counsel chosen by it and at pay (without prejudice of any of its sole cost and expense. Notwithstanding the foregoing, if (A) rights as against the Indemnifying Party shall not have given notice of its election to conduct and control the defense of the Party), compromise or defend such Third Party Claim within (until such 15 day period, defense is assumed by the Indemnifying Party) and (B) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party shall fail pursuant to conduct such defense diligently and the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in good faith, (C) connection with any Third Party Claim in which the Indemnified Party shall reasonably determine on conclude, based upon the written advice of outside counsel its counsel, that use (x) there is a conflict of counsel selected by interest between the Indemnifying Party to represent and the Indemnified Party would present in the conduct of the defense of 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 (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 in each such case the Indemnified Party shall have the right to control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost assume and expense. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with direct the defense or prosecution of such Third Party Claim. In such an event, including furnishing the Indemnifying Party shall pay the reasonable fees and disbursements of counsel of the Indemnifying Party and one counsel to all the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim over the objection of the other, provided, however, that consent to settlement or compromise shall not be unreasonably withheld by the Indemnified Party and provided further, that if the sole settlement relief payable to a Third Party in respect of such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested Third Party Claim is monetary damages that are paid in full by the Indemnifying Party, the Indemnifying Party or may settle such claim without the consent of the Indemnified Party. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in connection therewith. In addition, the party controlling the defense of any such Third Party Claim Claim. If the Indemnifying Party chooses to defend any claim, the Indemnified Party shall keep make available to the non-controlling party advised 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 the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretoappropriate confidentiality agreements.

Defense. Subject Except as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the limitations set forth in this Section 10.5(bIndemnified Party), in any Third Party Claim. If the event of a Indemnifying Party elects to compromise or #297907 -35- defend such Third Party Claim, it shall, within thirty (30) days after receiving notice of the Indemnifying Third Party shall have the right Claim (exercisable by written notice to the Indemnified Party within ten (10) days after if the Indemnified Party has given a Claim Notice 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 elect to conduct and control, through counsel notify the Indemnified Party of its choosing and at election to do so as herein provided, or otherwise fails to pursue the Indemnifying Party’s sole cost and expense, the defense, compromise or settlement defense of the such Third Party Claim if the Indemnifying Party with reasonable diligence, (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 chosen 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 it the Indemnifying Party) and at its sole cost (ii) the costs and expense. Notwithstanding expenses of the foregoing, if (A) Indemnified Party incurred in connection therewith shall be paid by the Indemnifying Party shall not have given notice pursuant to the terms of its election this Agreement. Notwithstanding anything to conduct and control the defense of the contrary contained herein, in connection with any Third Party Claim within such 15 day period, (B) the Indemnifying Party shall fail to conduct such defense diligently and in good faith, (C) which the Indemnified Party shall reasonably determine on written conclude, based upon advice of its outside counsel legal counsel, that use (x) there is a conflict of counsel selected by interest between the Indemnifying Party to represent and the Indemnified Party would present in the conduct of the defense of 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 (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 in each such case the Indemnified Party shall have the right to control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost assume and expense. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with direct the defense or prosecution of such Third Party Claim. In such an event, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or shall pay the reasonable fees and disbursements of counsel of the Indemnifying Party and one counsel to all the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party in connection therewith. In addition, the party controlling the defense of may settle or compromise any Third Party Claim shall keep (unless the non-controlling party advised sole relief payable in respect of such Third Party Claim is monetary damages that are paid in full by the Indemnifying Party) over the objection of the status thereof and other; provided, however, that consent to settlement or compromise shall consider in good faith any recommendations made not be unreasonably withheld by the non-controlling party with respect theretoIndemnified Party. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such Third Party Claim. If the Indemnifying Party chooses to defend any claim, the Indemnified Party shall make available to the Indemnifying Party any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the receipt of appropriate confidentiality agreements.

Defense. Subject to the limitations set forth in this Section 10.5(b9.5(b), in the event of a Third Party Claim, the Indemnifying Party shall have the right (exercisable by 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 controlcontrol the defense, through compromise or settlement of such Third Party Claim, with counsel of its choosing choice 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, has provided evidence reasonably satisfactory to the 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 chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A1) 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 periodfifteen (15) days after the Indemnified Party has given a Claim Notice thereof, (B2) the Indemnifying Party shall fail to conduct such defense diligently and in good faith, (C3) 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 a conflict of interest, or (D4) 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 control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. In addition, the party controlling the defense of any Third Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect thereto.

Defense. Subject to the limitations set forth in this Section 10.5(b), in the event of a Third Party ClaimIf any Action is brought against an Indemnified Party, the Indemnifying Party shall have will be entitled to participate in and to assume the right (exercisable by written defense thereof to the extent that it may wish, with counsel reasonably satisfactory to such Indemnified Party, and after notice from the Indemnifying Party to such Indemnified Party of the Indemnifying Party’s election to assume the defense thereof, the Indemnifying Party will not be liable to the Indemnified Party within ten (10) days after for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof unless the Indemnifying Party fails to assume the defense of such Action to protect the Indemnified Party. Notwithstanding anything to the contrary in this Subsection 10.4(b), the Indemnified Party has given a Claim Notice will be entitled to select its own counsel and assume the defense of the Third Party Claim) to elect to conduct and controlany Action brought against it, through counsel of its choosing and at the Indemnifying Party’s sole cost and expense, the defense, compromise or settlement of the Third Party Claim expense if the Indemnifying Party (i) has acknowledged and agreed the court in writing that, if the same which such Action is adversely determined, pending determines that a conflict of interest exists such that the Indemnifying Party shall provide indemnification to the Indemnified Party in respect thereof; provided, however, that the Indemnified Party may participate therein through separate Party’s counsel chosen is prohibited by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice of its election to conduct and control the defense of the Third Party Claim within such 15 day period, (B) the Indemnifying Party shall fail to conduct such defense diligently and in good faith, (C) the Indemnified Party shall reasonably determine on written advice of outside counsel that use of counsel selected by the Indemnifying Party court or otherwise unable to represent the Indemnified Party would present with respect to such counsel with an actual or potential conflict of interest, Action or (Dii) the Third Party Claim if there is for injunctive, equitable one or other non-monetary relief against the Indemnified Party, then in each such case more defenses that could be asserted by the Indemnified Party shall have the right to control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may that could not be reasonably requested asserted by the Indemnifying Party or the Indemnifying Party’s counsel (on the Indemnified Party’s behalf). The expenses of such defense to be paid by the Indemnifying Party shall be limited to the expenses of one law firm in each state in which an action has been filed. As a condition to the Indemnifying Party’s obligations hereunder, the Indemnified Party will in connection therewithgood faith cooperate with and assist the Indemnifying Party in the prosecution or defense of such indemnified Action at the expense of the Indemnifying Party. In additionNo Indemnifying Party will consent to entry of any judgment or enter into any settlement with respect to an indemnified Action either: (i) without the consent of the Indemnified Party, which consent will not be unreasonably delayed, conditioned or withheld; or (ii) unless such judgment or settlement includes the party controlling claimant or plaintiff giving the Indemnified Party an unconditional release from all liability with respect to such Action. No Indemnified Party will consent to entry of any judgment or enter into any settlement of any indemnified Action, the defense of any Third Party Claim shall keep which has been assumed by an Indemnifying Party, without the non-controlling party advised consent of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretosuch Indemnifying Party, which consent will not be unreasonably delayed, conditioned or withheld.

Defense. Subject Except as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the limitations set forth in this Section 10.5(bIndemnified Party), in any Third Party Claim. If the event of a Indemnifying Party elects to compromise or defend such Third Party Claim, the Indemnifying Party shall have the right (exercisable by written notice to the Indemnified Party it shall, within ten (10) 30 days after the Indemnified Party has given a Claim Notice receiving notice of the Third Party Claim) to elect to conduct and control, through counsel notify the Indemnified Party of its choosing intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party’s sole cost and expense, in the defensecompromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or settlement of defend against the Third Party Claim if Claim, or fails to notify the Indemnifying Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (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 chosen pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice pursuant to the terms of its election this Agreement. Notwithstanding anything to conduct and control the defense of the contrary contained herein, in connection with any Third Party Claim within such 15 day period, (B) the Indemnifying Party shall fail to conduct such defense diligently and in good faith, (C) which the Indemnified Party shall reasonably determine on conclude, based upon the written advice of outside counsel its counsel, that use (x) there is a conflict of counsel selected by interest between the Indemnifying Party to represent and the Indemnified Party would present in the conduct of the defense of such counsel with an actual or potential conflict of interestThird Party Claim, or (Dy) the Third Party Claim is for injunctive, equitable or other non-monetary relief against 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 in each such case the Indemnified Party shall have the right to control assume and direct the defense, defense and compromise or settlement of the such Third Party Claim with counsel of its choice at insofar as it relates to the Indemnifying Indemnified Party’s sole cost and expense. In connection with any Third Party Claim, from and after delivery of a Claim Noticesuch an event, the Indemnifying Party shall pay the reasonable fees and disbursements of counsel to the Indemnifying Party or Parties and the Indemnified Party shallprovided 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 (unless 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 the other party or parties hereto) over the objection of the other, provided, however, that consent to settlement or compromise shall cause their respective Affiliates not be unreasonably withheld. In any event, except as otherwise provided herein, the Indemnified Party and representatives tothe Indemnifying Party may each participate, cooperate fully at its own expense, in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by . If the Indemnifying Party or chooses to defend any claim, the Indemnified Party in connection therewith. In additionshall 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 party controlling the defense receipt of any Third Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretoappropriate confidentiality agreements.

Defense. Subject Except as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the limitations set forth in this Section 10.5(bIndemnified Party), in any Third Party Claim. If the event of a Indemnifying Party elects to compromise or defend such Third Party Claim, the Indemnifying Party shall have the right (exercisable by written notice to the Indemnified Party it shall, within ten (10) 30 days after the Indemnified Party has given a Claim Notice receiving notice of the Third Party Claim) to elect to conduct and control, through counsel notify the Indemnified Party of its choosing intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party’s sole cost and expense, in the defensecompromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or settlement of defend against the Third Party Claim if Claim, or fails to notify the Indemnifying Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (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 chosen pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice pursuant to the terms of its election this Agreement. Notwithstanding anything to conduct and control the defense of the contrary contained herein, in connection with any Third Party Claim within such 15 day period, (B) the Indemnifying Party shall fail to conduct such defense diligently and in good faith, (C) which the Indemnified Party shall reasonably determine on conclude, based upon the written advice of outside counsel its counsel, that use (x) there is a conflict of counsel selected by interest between the Indemnifying Party to represent and the Indemnified Party would present in the conduct of the defense of such counsel with an actual or potential conflict of interestThird Party Claim, or (Dy) the Third Party Claim is for injunctive, equitable or other non-monetary relief against 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 in each such case the Indemnified Party shall have the right to control the defense, compromise or settlement of the Third Party Claim with be represented by counsel of its choice at the Indemnifying Party’s sole cost and expenseselected by it. In connection with any Third Party Claim, from and after delivery of a Claim Noticesuch an event, the Indemnifying Party shall pay the reasonable fees and disbursements of counsel to the Indemnifying Party or Parties and the Indemnified Party shallprovided 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, and shall cause their respective Affiliates and representatives toneither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim (unless the sole relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full (subject to the Sellers' Basket or the WRF Basket, cooperate fully as applicable) by the party settling or compromising such claim, the settlement or compromise includes a complete release of the other party or parties hereto and, in connection with the case of a settlement or compromise by the Indemnified Party, the Indemnifying Party has abandoned the defense or prosecution of such Third Party Claim) over the objection of the other, including furnishing such recordsprovided, information however, that consent to settlement or compromise shall not be unreasonably delayed or withheld. In any event, except as otherwise provided herein, the Indemnified Party and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or may each participate, at its own expense, in the defense of such Third Party Claim. If the Indemnifying Party chooses to defend any claim, the Indemnified Party in connection therewith. In additionshall 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 party controlling the defense receipt of any Third Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretoappropriate confidentiality agreements.

Defense. Subject If a Third Party Claim is made against the Indemnified Party, then the Indemnifying Party shall be entitled to participate in the defense thereof and, if the Indemnifying Party so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party and reasonably satisfactory to the limitations set forth in this Section 10.5(b), in Indemnified Party. The Indemnifying Party shall be liable for the event 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 have the right (exercisable by written notice provide to the Indemnified Party within ten an undertaking stating that such Indemnifying Party is able to and will assume the payment of all defense fees and costs and (10ii) 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, the defense, compromise or settlement assumption of the defense of such 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 chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice signify any agreement, obligation or commitment on the part 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 assume or pay any amount awarded to a claimant in respect of 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 Claim. If the Indemnified PartyIndemnifying Party assumes such defense, then in each such case the Indemnified Party shall have the right to control participate in the defensedefense thereof and to employ counsel, compromise or settlement of at its own expense, separate from the Third Party Claim with counsel of its choice at employed by the Indemnifying Party’s sole cost and expense, it being understood, however, that the Indemnifying Party shall control such defense. In connection with If the Indemnifying Party chooses to defend any Third Party Claim, from and after delivery of a Claim Notice, then the Indemnifying Party and the Indemnified Party shall, and Parties shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information . Such cooperation shall include the retention and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by (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 in connection therewith. In additionshall (upon further notice) have the right to defend, the party controlling the defense compromise or settle of any such Third Party Claim shall keep or consent to the non-controlling party advised entry of the status thereof and shall consider in good faith any recommendations made by the non-controlling party judgment with respect theretoto such Third Party Claim.

Defense. Subject to the limitations set forth in this Section 10.5(b), in the event of If a Third Party ClaimClaim is made against an Indemnified Party, then the Indemnifying Party shall have the right (exercisable by written notice be entitled 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, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party (i) has acknowledged and agreed participate 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 chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice of its election to conduct and control the defense of the Third Party Claim within such 15 day periodand, (B) if the Indemnifying Party so chooses, to assume the defense of the Third Party Claim. If the Indemnifying Party so elects to assume the defense of a Third Party Claim, then the Indemnifying Party shall fail not be liable to conduct such defense diligently and in good faith, (C) the Indemnified Party shall reasonably determine on written advice for legal expenses subsequently incurred by the Indemnified Party in connection with the defense of outside counsel that use of counsel selected by the Third Party Claim. If the Indemnifying Party to represent the Indemnified Party would present assumes 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 Partydefense, then in each such case the Indemnified Party shall have the right to control participate in the defense, compromise or settlement defense of the Third Party Claim with and to employ counsel, at its own expense, separate from the counsel of its choice at employed by the Indemnifying Party’s sole cost and expense, it being understood, however, that the Indemnifying Party shall control such defense, including any settlement or compromise of the Third Party Claim. In connection with If the Indemnifying Party chooses to defend any Third Party Claim, from then the Parties shall cooperate in the defense of the Third Party Claim. Such cooperation shall include the retention and after delivery of a Claim Notice, (upon the Indemnifying Party’s request) provision to the Indemnifying Party of records that are reasonably relevant to the Third Party Claim and the Indemnified Party shallprovision of access to employees on a mutually convenient basis to provide additional information and explanation of any material provided. If the Indemnifying Party, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution within a reasonable time after receipt of such an Indemnification Notice relating to a Third Party Claim, including furnishing such recordschooses not to assume defense of the Third Party Claim or fails to defend the Third Party Claim actively and in good faith, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or then the Indemnified Party in connection therewith. In addition, shall (upon further notice to the party controlling Indemnifying Party) have the right to undertake the defense of the Third Party Claim. The Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of any Third Party Claim shall keep that does not include as an unconditional term the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made giving by the non-controlling party Person or Persons asserting such claim an unconditional release from all liability related to or associated with respect theretosuch claim (with such approval not to be unreasonably withheld).

Defense. Subject If any such action is brought against an indemnified party, the indemnifying Party will be entitled to participate in and to assume the defense thereof to the limitations set forth in this Section 10.5(b)extent that it may wish, in and after notice from the event indemnifying Party to such indemnified party of a Third Party Claimthe indemnifying Party’s election to assume the defense thereof, the Indemnifying Party shall have the right (exercisable by 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, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall provide indemnification to the Indemnified Party in respect thereof; provided, however, that the Indemnified Party may participate therein through separate counsel chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying indemnifying Party shall not have given notice of its election be liable 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 indemnified party for any legal or other expenses subsequently incurred 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 control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully latter in connection with the defense or prosecution thereof unless the indemnifying Party has failed to assume the defense of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by claim. Notwithstanding any of the Indemnifying Party or foregoing to the Indemnified Party in connection therewith. In additioncontrary, the indemnified party controlling will be entitled to select its own counsel and assume the defense of any Third action brought against it if the indemnifying Party Claim shall keep fails to assume such defense, the non-controlling expenses of such defense to be paid by the indemnifying Party. As a condition to the indemnifying Party’s obligations hereunder, the indemnified party advised of the status thereof and shall consider 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 recommendations made 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, delayed or conditioned, or (b) unless such judgment or settlement includes as an unconditional term thereof the giving by the non-controlling claimant or plaintiff to such indemnified party of a release from all liability with PURCHASE AND SALE AGREEMENT 39 respect theretoto such claim. No indemnified party shall consent to entry of any judgment or enter into any settlement of any such action, the defense of which has been assumed by an indemnifying Party, without the consent of such indemnifying Party, which consent shall not be unreasonably withheld.

Defense. Subject Except as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the limitations set forth in this Section 10.5(bIndemnified Party), in any Third Party Claim. If the event of a Indemnifying Party elects to compromise or defend such Third Party Claim, the Indemnifying Party shall have the right (exercisable by written notice to the Indemnified Party it shall, within ten (10) 30 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, the defense, compromise or settlement receiving notice of the Third Party Claim (10 days if the Indemnifying Party in good faith states in such notice that prompt action is required), notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (i) 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 chosen 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 it the Indemnifying Party) and at its sole cost (ii) the costs and expense. Notwithstanding expenses of the foregoing, if (A) Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party shall not have given notice pursuant to the terms of its election this Agreement. Notwithstanding anything to conduct and control the defense of the contrary contained herein, in connection with any Third Party Claim within such 15 day period, (B) the Indemnifying Party shall fail to conduct such defense diligently and in good faith, (C) which the Indemnified Party shall reasonably determine on written conclude, based upon advice of its outside counsel legal counsel, that use (x) there is a conflict of counsel selected by interest between the Indemnifying Party to represent and the Indemnified Party would present in the conduct of the defense of 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 (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 in each such case the Indemnified Party shall have the right to control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost assume and expense. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with direct the defense or prosecution of such Third Party Claim. In such an event, including furnishing the Indemnifying Party shall pay the reasonable fees and disbursements of counsel of the Indemnifying Party and one counsel to all the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim (however, if the sole settlement relief payable to a third party in respect of such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested Third Party Claim is monetary damages that are paid in full by the Indemnifying Party or and if the settlement results in the full and unconditional release of all claims against the Indemnified Party in connection therewithby the person asserting such claim, the Indemnifying Party may settle such claim without the consent of the Indemnified Party) over the objection of the other. In additionany event, except as otherwise provided herein, the party controlling Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of any such Third Party Claim in which case each party shall keep cooperate in providing information to and consulting with the non-controlling party advised other about the claim. If the Indemnifying Party chooses to defend any claim, the Indemnified Party shall make available to the Indemnifying Party any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the receipt of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretoappropriate confidentiality agreements.

Defense. Subject Except as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the limitations set forth in this Section 10.5(bIndemnified Party), in any Third Party Claim. If the event of a Indemnifying Party elects to compromise or defend such Third Party Claim, the Indemnifying Party shall have the right (exercisable by written notice to the Indemnified Party it shall, within ten (10) 30 days after the Indemnified Party has given a Claim Notice receiving notice of the Third Party Claim) to elect to conduct and control, through counsel notify the Indemnified Party of its choosing intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party’s sole cost and expense, in the defensecompromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or settlement of defend against the Third Party Claim if Claim, or fails to notify the Indemnifying Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (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 chosen pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice pursuant to the terms of its election this Agreement. Notwithstanding anything to conduct and control the defense of the contrary contained herein, in connection with any Third Party Claim within such 15 day period, (B) the Indemnifying Party shall fail to conduct such defense diligently and in good faith, (C) which the Indemnified Party shall reasonably determine on conclude, based upon the written advice of outside counsel its counsel, that use (x) there is a conflict of counsel selected by interest between the Indemnifying Party to represent and the Indemnified Party would present in the conduct of the defense of 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 (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 in each such case the Indemnified Party shall have the right to control assume and direct the defense, defense and compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In connection with any such Third Party Claim. In such an event, from the Indemnifying Party shall indemnify the Indemnified Party for the fees and after delivery disbursements of a Claim Notice, counsel to each of the Indemnifying Party and the Indemnified Party. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim, (unless the sole relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full by the party settling or compromising such claim) over the objection of the other; provided, however, that consent to settlement or compromise shall not be unreasonably withheld. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such Third Party Claim. If the Indemnifying Party chooses to defend any claim, the Indemnified Party shall make available to the Indemnifying Party any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the receipt of appropriate confidentiality agreements. Notwithstanding anything to the contrary contained in this paragraph (b), in the event prompt action is required with respect to the defense of a Third Party Claim, the Indemnified Party shall, subject to the terms and shall cause their respective Affiliates and representatives toconditions of this Article IX, cooperate fully in connection with have the right to assume the defense or prosecution of such Third Party Claim; provided, however, that in the event that the Indemnifying Party subsequently elects to assume the defense of such Third Party Claim, including furnishing such records, information then the provisions set forth in this paragraph (b) shall be applicable and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or shall, subject to the terms and conditions of this Article IX, indemnify the Indemnified Party in connection therewith. In addition, for any costs and expenses incurred by the party controlling Indemnified Party prior to the defense date the Indemnifying Party assumes control of any such Third Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretoClaim.

Defense. Subject to the limitations set forth in this Section 10.5(b11.5(b), in the event of a Third Party Claim, the Indemnifying Party shall have the right (exercisable by 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 own cost and expense, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall provide indemnification to the Indemnified Party in respect thereof, and (ii) if requested by the Indemnified Party, has provided evidence reasonably satisfactory to the Indemnified Party of the Indemnifying Party’s financial ability to pay any Loss and Expense resulting from the Third Party Claim; provided, however, that the Indemnified Party may participate therein participate, through separate counsel chosen by it and at its sole own cost and expense, in the defense of the Third Party Claim. 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 10-day period, (B) the Indemnifying Party shall fail to conduct such defense diligently and in good faithdiligently, (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 a 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 control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In connection with any Third Party Claimevent, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates affiliates and representatives to, cooperate fully in connection with the defense or prosecution of such any Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. In addition, the party controlling the defense of any Third Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect thereto.

Defense. Subject An Indemnifying Party will have the sole right to control the limitations set forth in this Section 10.5(b)defense and financial settlement of any Losses for which it is providing indemnification hereunder, in including the event selection of a Third Party Claimlegal counsel, except that the Indemnifying Party shall have must not agree to any non-financial settlement or term of settlement (including but not limited to any acknowledgement of liability or responsibility) of any Losses without the right (exercisable by written notice to the Indemnified Party within ten (10) days after the Indemnified Party has given a Claim Notice prior consent of the Third Party Claimrelevant Indemnified Party(ies). The Indemnified Party(ies) to elect to conduct and controlwill, through counsel of its choosing and at the Indemnifying Party’s sole cost and expense, the defense, compromise or settlement of the Third Party Claim if cooperate with the Indemnifying Party (i) has acknowledged and agreed as reasonably requested 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 chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice of its election to conduct and control the defense of the Third Losses, including but not limited to making relevant representatives and documents available to the Indemnifying Party. Nothing herein prevents an Indemnified Party, prior to the resolution of any Losses, from retaining its own legal counsel for the purpose of assuming control of the Indemnified Party’s defense; however, the Indemnified Party Claim within such 15 day period, (B) must immediately notify the Indemnifying Party shall fail to conduct such in writing of its assumption of the defense, and its assumption thereof will relieve the Indemnifying Party of any further indemnification and defense diligently and in good faith, (C) obligations on behalf of the Indemnified Party shall reasonably determine on written advice hereunder as of outside counsel the date of such notice. Notwithstanding anything to the contrary in this Section 3.2, with respect to an Indemnified Party that use of counsel selected by is a Federal Institution, 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 control the defense, compromise or defense and financial settlement of Losses, including the Third Party Claim with counsel selection of its choice at legal counsel, as provided herein, except to the extent that a third party is required by law to defend the Indemnified Party, which requirement may limit or preclude the Indemnifying Party’s sole cost and expense. In connection with any Third Party Claimobligation to defend, from and after delivery of a Claim Notice, but which shall not affect the Indemnifying Party Party’s obligations to indemnify and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. In addition, the party controlling the defense of any Third Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretohold harmless hereunder.

Defense. Subject Except as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably satis- factory to the limitations set forth in this Section 10.5(bIndemnified Party), in any Third Party Claim. If the event of a Indemnifying Party elects to compromise or defend such Third Party Claim, the Indemnifying Party shall have the right (exercisable by written notice to the Indemnified Party it shall, within ten (10) 30 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, the defense, compromise or settlement receiving notice of the Third Party Claim (10 days if the Indemnifying Party states in such notice that prompt action is required), notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indem- nifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (i) 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 chosen pay (without prejudice to any of its rights as against the Indemnifying Party), compro- mise or defend such Third Party Claim (until such defense is assumed by it the Indemnifying Party) and at its sole cost (ii) the costs and expense. Notwithstanding ex- penses of the foregoing, if (A) Indemnified Party incurred in connection there- with shall be indemnifiable by the Indemnifying Party shall not have given notice pursuant to the terms of its election this Agreement. Notwithstanding anything to conduct and control the defense of the contrary contained herein, in connection with any Third Party Claim within such 15 day period, (B) the Indemnifying Party shall fail to conduct such defense diligently and in good faith, (C) which the Indemnified Party shall reasonably determine on written conclude, based upon advice of its outside counsel legal counsel, that use (x) there is a conflict of counsel selected by interest between the Indemnifying Party to represent and the Indemnified Party would present in the conduct of the defense of 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 (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 in each such case the Indemnified Party shall have the right to control direct the defense, compromise or settlement defense of the such Third Party Claim with counsel the participation of its choice at the Indemnifying Party’s sole cost and expense. In connection with any Third Party Claim, from and after delivery of a Claim Noticesuch an event, the Indemnifying Party shall pay the reasonable fees and disbursements of counsel of the Indemnifying Party and one counsel to all the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnify- ing Party nor the Indemnified Party shallmay settle or compromise any claim (however, if the sole settlement relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full by the Indemnifying Party, the Indemnifying Party may settle such claim without the consent of the Indemnified Party) over the objection of the other; pro- vided, however, that consent to settlement or compromise shall not be unreasonably withheld by the Indemnified Party. In any event, except as otherwise provided herein, the Indemnified Party and shall cause their respective Affiliates and representatives tothe Indemnifying Party may each participate, cooperate fully at its own expense, in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by . If the Indemnifying Party or chooses to defend any claim, the Indemnified Party in connection therewith. In additionshall make available to the Indemnifying Party any per- sonnel or any books, records or other documents within its con- trol that are reasonably necessary or appropriate for such de- fense, subject to the party controlling the defense receipt of any Third Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretoappropriate confidentiality agreements.

Defense. Subject If a Third Party Claim is made against the Indemnified Party, then the Indemnifying Party shall be entitled to participate in the defense thereof and, if the Indemnifying Party so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party and reasonably satisfactory to the limitations set forth in this Section 10.5(b)Indemnified Party, in provided that the event Indemnifying Party shall not have the right to defend or direct the defense of any such Third Party Claim that (x) is asserted directly by or on behalf of a Person that is a customer or supplier of the Business, or (y) seeks an injunction or other equitable relief against the Indemnified Party. The Indemnifying Party shall be liable for the reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof. If the Indemnifying Party so elects to assume the defense of a Third Party Claim, 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 have the right (exercisable by written notice provide to the Indemnified Party within ten an undertaking stating that such Indemnifying Party is able to and will assume the payment of all defense fees and costs and (10ii) 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, the defense, compromise or settlement assumption of the defense of such 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 chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice signify any agreement, obligation or commitment on the part 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 assume or pay any amount awarded to a claimant in respect of 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 Claim. If the Indemnified PartyIndemnifying Party assumes such defense, then in each such case the Indemnified Party shall have the right to control participate in the defense, compromise or settlement of defense thereof and to employ counsel separate from the Third Party Claim with counsel of its choice at employed by the Indemnifying Party’s sole cost , it being understood, however, that the Indemnifying Party shall control such defense. The fees and expense. In connection with any Third disbursements of counsel employed by the Indemnified Party Claimshall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from and after delivery or additional to those available to the Indemnifying Party; or (B) there exists a conflict of a Claim Notice, interest between the Indemnifying Party and the Indemnified Party shallthat cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required. If the Indemnifying Party chooses to defend any Third Party Claim, then the Parties shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information . Such cooperation shall include the retention and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by (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 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 in connection therewith. In additionshall (upon further written notice) have the right to defend and, the party controlling the defense subject to Section 7.4(c), compromise or settle of any such Third Party Claim shall keep or {W5975088.1} 33 consent to the non-controlling party advised entry of judgment with respect to such Third Party Claim, in each case at the cost and expense of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretoIndemnifying Party.

Defense. Subject If any of the 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 limitations set forth in indemnifying party; provided -------- that the failure to give such notice shall not affect the indemnified party or parties' ability to seek indemnification hereunder unless such failure has materially and adversely affected the indemnifying party or parties' ability to prosecute successfully an Indemnification Claim. Each indemnified party shall permit the indemnifying party, at its own expense, to assume the defense of any such claim or any litigation to which this Section 10.5(b)10(d) may be applicable, in the event of a Third Party Claim, the Indemnifying Party shall have the right (exercisable by written notice counsel reasonably satisfactory 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, the defense, compromise indemnified party 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 thereofparties; provided, however, -------- that the Indemnified Party may participate therein through separate counsel chosen by it and indemnified party or parties shall be entitled at any time, at its sole or their own cost and expense. Notwithstanding the foregoing, if expense (A) the Indemnifying Party which expense shall not have given notice be recoverable from the indemnifying party unless the indemnifying party is not adequately representing or, because 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 a conflict of interest, may not adequately represent, the indemnified party or (D) parties' interests), to participate in such claim, action or proceeding and to be represented by attorneys of its or their own choosing. If the Third Party Claim is for injunctive, equitable indemnified party or other non-monetary relief against the Indemnified Party, then parties elects to participate in each such case the Indemnified Party shall have the right to control the 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 or settlement any Indemnification Claim without the consent of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expenseindemnifying party. In connection with any Third Party ClaimThe indemnifying party, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. In addition, the party controlling the defense of any Third Party such claim or litigation, shall not, except with the approval of each indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party or parties of a full and complete release from all liability in respect to such claim or litigation. If the Indemnification Claim arises under Section 10(b)(iii), the indemnifying party shall keep defend the non-controlling third party advised claim in the name of the status thereof indemnifying party and shall consider in good faith pay any recommendations made by amounts to be indemnified under such section directly to the non-controlling party with respect theretoclaiming party.

Defense. Subject to Unless the limitations set forth Parties otherwise agree in this Section 10.5(b)writing, in the event of a Third Party Claim, the Indemnifying each Party shall have the right (exercisable by written notice first right, but not the obligation, subject to the Indemnified Party within ten (10) days after the Indemnified Party has given a Claim Notice any intervening rights of the other Party under applicable Law, to defend and control the defense of any Third Party Claim) to elect to conduct and controlInfringement Action that names such Party as a defendant, through using counsel of its choosing and own choice, at the Indemnifying Party’s its sole cost and expense, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall provide indemnification to the Indemnified Party in respect thereof; provided, however, that if a Third Party Infringement Action is […***…], then […***…] shall have the Indemnified first right, but not the obligation, to defend and control the defense of such Third Party Infringement Action, using counsel of its own choice, […***…]. In any event, each Party may participate therein through separate in any such Third Party Infringement Action with counsel chosen of its choice at its own cost and expense; provided that the controlling Party shall retain the right to control such Third Party Infringement Action. Without limitation of the foregoing, if the controlling Party finds it necessary or desirable to join the other Party as a party to any such Third Party Infringement Action, such other Party shall execute all papers and perform such acts as shall be reasonably required. If the controlling Party elects (in a written communication submitted to the other Party within a reasonable amount of time after notice of the Third Party Infringement Action) not to defend or control the defense of, or otherwise fails to initiate and maintain the defense of, any such Third Party Infringement Action, the controlling Party shall do so within such time periods so that such other Party is not prejudiced by it any delays, and such other Party shall have the right, […***…], to conduct and control the defense of such Third Party Infringement Action using counsel reasonably acceptable to the other Party at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Each Party shall not have given notice keep the other Party reasonably informed of its election all material developments in connection with any such Third Party Infringement Action, including by providing the other Party with copies of all pleadings filed in such action. The controlling Party shall allow the other Party, to conduct and control the extent such other Party is participating in the Third Party Infringement Action, reasonable opportunity to participate in 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 control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. In addition, the party controlling the defense of any Third Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretoclaims.

Defense. Subject If the Indemnifying Party elects not to assume the defense, is not permitted to assume the defense pursuant to paragraph (a), fails to assume the defense within thirty (30) days from receipt of a Claim Notice, does not diligently defend the Third Party Claim or the Indemnifying Party and any Indemnified Party are both parties to or subjects of such Legal Proceeding and a conflict of interest exists between the Indemnifying Party and such Indemnified Party which has the potential of materially and adversely affecting the interests of the Indemnified Party in the defense of such Legal Proceeding, then the Indemnified Party may elect to defend the Third Party Claim and employ counsel reasonably satisfactory to the limitations set forth in this Section 10.5(bIndemnifying Party to represent or defend the Indemnified Party against any such Third Party Claim and the Indemnifying Party will pay the reasonable fees and disbursements of such counsel (such expenditures to be reimbursed promptly after submission of invoices therefor); provided, however, that the Indemnifying Party shall not, in connection with any Action or separate but substantially similar Actions arising out of the event same general allegations, be liable for the fees and expenses of more than one separate firm of attorneys at any time for any Indemnified Party, except to the extent that local counsel, in addition to its regular counsel, is required in order to effectively defend against such Action. If the Indemnifying Party does assume the defense of a Third Party Claim, the Indemnified Party shall have the right to participate in the defense of such Third Party Claim at its expense. If the Indemnifying Party does assume the defense of a Third Party Claim, the Indemnifying Party shall have the right (exercisable by written notice reasonably cooperate in providing information to and consulting with the Indemnified Party within ten (10) days after the Indemnified Party has given a Claim Notice of about the Third Party Claim) to elect to conduct . The Indemnifying Party shall be liable for the fees and control, through expenses of counsel of its choosing and at employed by the Indemnifying Party’s sole cost and expense, the defense, compromise or settlement of the Third Indemnified Party Claim if for any period during which 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 chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice of its election to conduct and control assumed 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 control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. In addition, the party controlling the defense of any Third Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect thereto.

Defense. Subject to the limitations set forth in this Section 10.5(b), in the event of a Third Party Claim, the The Indemnifying Party shall have the right (exercisable by 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 controldirect, through counsel of its choosing and at the Indemnifying Party’s sole cost and expenseown choosing, the defense, compromise defense 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 any action or proceeding brought against the Indemnified Party in respect thereofof 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 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 Indemnifying Party elects to assume the defense of any such claim or proceeding, the Indemnified Party may participate therein through separate counsel chosen by it and in such defense at its sole cost and own expense. Notwithstanding the foregoing, if (A) If the Indemnifying Party shall not have given notice of its election fails to conduct and control the defense of the Third Party Claim within defend or, after commencing or undertaking any such 15 day perioddefense, (B) the Indemnifying Party shall fail fails to conduct prosecute or withdraws from such defense diligently and in good faithother than as a result of a settlement, (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 control direct, through counsel of its own choosing, the defense, compromise 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 11.3 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 11.3(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 11.3(b), and the Indemnified Party shall reimburse the Indemnifying Party in full for all costs and expenses incurred by the Indemnifying Party in connection with such Third Party Claim with counsel Claim. The party directing the defense shall pursue such defense diligently and promptly. The parties shall cooperate in the defense of its choice at the Indemnifying Party’s sole cost and expenseall Third Party Claims. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. In addition, the party controlling the defense of any Third Party Claim Claim, each party shall keep make available to the non-party controlling party advised such defense any books, records or other documents within its control that are reasonably requested in the course of or necessary or appropriate for such defense; provided, however, that appropriate arrangements are made to safeguard the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretoconfidentiality of such materials.

Defense. Subject to the limitations set forth in this Section 10.5(bIf any claim, demand or liability is asserted by any third party against any Indemnified Party (a "Third-Party Claim"), in the event Indemnified Party will (upon notice of a Third Party Claimsaid claim or demand) promptly notify the Indemnifying Party, and the Indemnifying Party shall have the right (exercisable by 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, the defense, compromise defend and/or settle any actions 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 proceedings brought against the Indemnified Party in respect thereof; provided, however, that of matters embraced by the indemnity with counsel reasonably satisfactory to the Indemnified Party may participate therein through separate counsel chosen by it and at its sole cost and expenseParty. Notwithstanding the foregoing, if (A) If the Indemnifying Party shall does not have given notice of its election to conduct and control the defense of the Third Party Claim within promptly defend or settle any such 15 day periodclaims, (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 conduct and control any defense or settlement, at the defense, compromise or settlement expense of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and . Except as provided by the preceding sentence, no claim will be settled or compromised without the prior written consent of each party to be affected by such settlement or compromise, which consent shall not be unreasonably withheld. The Indemnified Party shall at all times also have the right to participate fully in the defense at its own expense. In connection with any Third ; provided, however, that the Indemnifying Party Claim, from and after delivery shall pay the legal fees of a one counsel for the Indemnified Party if the Third-Party Claim Notice, is made both against the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates the Indemnified Party has been advised by counsel that there would be a conflict of interest in having the same counsel represent both the Indemnified Party and representatives to, the Indemnifying Party. The parties will cooperate fully in the defense of all Third-Party Claims that may give rise to Indemnifiable Claims hereunder. In connection with the defense or prosecution of such Third Party Claimany claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. In addition, each party will make available to the party controlling such defense any books, records or other documents within its control that are reasonably requested in the defense course of any Third Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretosuch defense.

Defense. Subject Except as otherwise provided herein, the ------- Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the limitations set forth in this Section 10.5(bIndemnified Party), any Third Party Claim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the event 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 a its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, the Indemnified Party may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party shall have Claim including the right (exercisable by written notice to costs and expenses of the Indemnified Party within ten (10) days after incurred in connection therewith. Notwithstanding anything to the Indemnified Party has given a Claim Notice of the Third Party Claim) to elect to conduct and controlcontrary contained herein, through counsel of its choosing and at the Indemnifying Party’s sole cost and expense, the defense, compromise or settlement of the in connection with any 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 chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice of its election to conduct and control the defense of the Third Party Claim within such 15 day period, (B) the Indemnifying Party shall fail to conduct such defense diligently and in good faith, (C) which the Indemnified Party shall reasonably determine on conclude, based upon the written advice of outside counsel its counsel, that use (x) there is a conflict of counsel selected by interest between the Indemnifying Party to represent and the Indemnified Party would present in the conduct of the defense of such counsel with an actual or potential conflict of interestThird Party Claim, or (Dy) the Third Party Claim is for injunctive, equitable or other non-monetary relief against 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 in each such case the Indemnified Party shall have the right to control the defense, compromise or settlement of the Third Party Claim with be represented by counsel of its choice at the Indemnifying Party’s sole cost and expenseselected by it. In connection with any Third Party Claimsuch an event, from the reasonable fees and after delivery disbursements of a Claim Notice, the Indemnifying Party and single counsel to the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully be included in connection with the defense or prosecution loss suffered by the Indemnified Party in respect of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by . Whether or not the Indemnifying Party or shall have assumed the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld). If the Indemnifying Party shall have assumed the defense of a Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection therewithwith such Third Party Claim, which releases the Indemnified Party completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnified Party. In additionIf the Indemnifying Party chooses to defend any claim, the party controlling Indemnified Party shall make available to the Indemnifying Party any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the receipt of appropriate confidentiality agreements. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall keep be liable for the non-controlling party advised reasonable fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party which the Indemnified Party reasonably determines, based on the opinion of its outside counsel, cannot be separated form any related claim for money damages. If such equitable relief or other relief portion of the status thereof and Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall consider in good faith any recommendations made by be entitled to assume the non-controlling party with respect theretodefense of the portion relating to money damages.

Defense. Subject Except as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel (which counsel shall be reasonably satisfactory to the limitations set forth in this Section 10.5(bIndemnified Party), in any Third Party Claim. If the event of a Indemnifying Party elects to compromise or defend such Third Party Claim, the Indemnifying Party shall have the right (exercisable by written notice to the Indemnified Party it shall, within ten (10) 30 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, the defense, compromise or settlement receiving notice of the Third Party Claim (10 days if the Indemnifying Party (i) has acknowledged states in such notice that prompt action is required), notify the Indemnified Party of its intent to do so, and agreed the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in writing thatthe compromise of, if the same is adversely determinedor defense against, such Third Party Claim. If the Indemnifying Party shall provide indemnification elects not to compromise or defend against the third Party Claim, or fails to notify the Indemnified Party in respect thereof; of its election to do so as herein provided, howeveror otherwise abandons the defense of such Third Party Claim, that (A) the Indemnified Party may participate therein through separate counsel chosen by it and at pay (without prejudice of any of its sole cost and expense. Notwithstanding the foregoing, if (A) rights as against the Indemnifying Party shall not have given notice of its election to conduct and control the defense of the Party), compromise or defend such Third Party Claim within (until such 15 day period, defense is assumed by the Indemnifying Party) and (B) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party shall fail pursuant to conduct such defense diligently and the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in good faith, (C) connection with any Third Party Claim in which the Indemnified Party shall reasonably determine on conclude, based upon the written advice of outside counsel its counsel, that use (x) there is a conflict of counsel selected by interest between the Indemnifying Party to represent and the Indemnified Party would present in the conduct of the defense of 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 (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 in each such case the Indemnified Party shall have the right to control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost assume and expense. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with direct the defense or prosecution of such Third Party Claim. In such an event, including furnishing the Indemnifying Party shall pay the reasonable fees and disbursements of counsel of the Indemnifying Party and one counsel to all the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim over the objection of the other, provided, however, that consent to settlement or compromise shall not be unreasonably withheld by the Indemnified Party and provided further, that if the sole settlement relief payable to a Third Party in respect of such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested Third Party Claim is monetary damages that are paid in full by the Indemnifying Party, the Indemnifying Party or may settle such claim without the consent of the Indemnified Party. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in connection therewith. In addition, the party controlling the defense of any such Third Party Claim Claim. If the Indemnifying Party chooses to defend any claim, the Indemnified Party shall keep make available to the non-controlling party advised 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 the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretoappropriate confidentiality agreements.

Defense. Subject If a Third Party Claim is made against the Indemnified Party, then the Indemnifying Party shall be entitled to participate in the defense thereof and, if the Indemnifying Party so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party and reasonably satisfactory to the limitations set forth in this Section 10.5(b), in Indemnified Party. The Indemnifying Party shall be liable for the event 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, the Indemnifying Party shall have the right (exercisable by 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, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall provide indemnification to the Indemnified Party in respect thereof; provided, however, that the Indemnified Party may participate therein through separate counsel chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) then the Indemnifying Party shall not have given notice be liable to the Indemnified Party for the reasonable fees and expenses of its election to conduct and control counsel subsequently incurred by the Indemnified Party in connection with the defense of the Third Party Claim within such 15 day period, (B) thereof. If the Indemnifying Party shall fail to conduct assumes 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 Partydefense, then in each such case the Indemnified Party shall have the right to control participate in the defensedefense thereof and to employ counsel, compromise or settlement of at its own expense, separate from the Third Party Claim with counsel of its choice at employed by the Indemnifying Party’s sole cost , it being understood, however, that the Indemnifying Party shall control such defense and expensethe Indemnified Party shall pay the expense of his or its separate counsel. In connection with If the Indemnifying Party chooses to defend any Third Party Claim, from and after delivery of a Claim Notice, then the Indemnifying Party and the Indemnified Party shall, and Parties shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution of crossclaims or counterclaims relating to such Third Party Claim. Such cooperation shall include, without limitation, the retention, and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party, of records that are reasonably relevant to such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or making employees of the Indemnified Party in connection therewithavailable on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. In additionIf, but only if the party controlling 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 any a Third Party Claim shall keep the non-controlling party advised of the status thereof or fails to defend such Third Party Claim actively and shall consider in good faith any recommendations made by faith, then the non-controlling party with respect theretoIndemnified Party shall (upon further written notice to the Indemnifying Party) have the right thereafter to defend, compromise or settle such Third Party Claim.

Defense. Subject to As soon as practicable upon the limitations set forth in this Section 10.5(b), in the event receipt of a Third Party Claimany such claim, the Indemnifying Parties shall confer and decide which Party shall commence actions to defend such claim, or if the Parties shall defend such claim jointly. If the selected Party does not commence actions to defend such claim within [**] days after such agreement, then the other Party shall have the right (exercisable right, but not the obligation, to defend any such claim. If the Parties fail to agree as to which Party shall commence actions to defend such claim, and dispute resolution pursuant to Section 13.3 will result in failure by the Parties to meet a litigation deadline in a timely manner, then the Party that is the defendant may defend such claim, provided that the defending Party shall give written notice to the Indemnified non-defending Party within ten (10) days after and shall consider comments by the Indemnified non-defending 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 expensein good faith. In any event, 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 non-defending Party shall provide indemnification to reasonably cooperate with the Indemnified Party in respect thereof; provided, however, that the Indemnified Party may participate therein through separate counsel chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice of its election to conduct and control conducting the defense of the Third Party Claim within claim. If such 15 day periodclaim is solely related to the 435 Compound and/or the 055 Compound, (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 Xxxxxxx shall have the right to control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole defend such claims and shall bear any cost and expense. In connection with any Third Party Claim, from and after delivery expenses of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. In addition, the party controlling the defense of any such Third Party Claim infringement claim and shall keep have sole rights to any recovery, and if such claim is solely related to the non-controlling party advised Idenix Compound, Idenix shall have the right to defend such claims and shall bear any cost and expenses of the status thereof defense of any such Third Party infringement claims and shall consider in good faith have sole rights to any recommendations made by recovery. If the non-controlling party with respect theretoParties agree that a claim is related to the 435 Compound and/or 055 Compound, on the one hand, and the Idenix Compound, on the other hand, or the claim is not related to the 435 Compound, the 055 Compound or the Idenix Compound, but is related to any Collaboration Trial, Xxxxxxx shall bear [**] percent ([**]%), and Idenix shall bear [**] percent ([**]%) of any costs and expenses of the defense of any such Third Party infringement claim and shall share equally any recovery. Neither Party shall enter into any settlement concerning activities under this Agreement that affects the other Party’s rights or interests, including any admissions of wrongdoing, without such other Party’s written consent, not to be unreasonably withheld or delayed.

Defense. Subject to the limitations set forth in this Section 10.5(b)Except as otherwise provided herein, in the event case of any claim ------- asserted by a Person that is not a party to this Agreement (a "Third Party ----------- Claim"), an Indemnifying Party may elect to compromise or defend, at such ----- Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party Claim. If an Indemnifying Party elects to compromise or defend such Third Party Claim, the Indemnifying Party it shall have the right (exercisable by written notice to promptly notify the Indemnified Party within ten (10) days after and any other Indemnifying Parties of its intent to do so, and the Indemnified Party has given a Claim Notice 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 elect compromise or defend against the Third party Claim, fails to conduct and control, through counsel notify the Indemnified Party of its choosing and at election to do so, or otherwise abandons the Indemnifying Party’s sole cost and expense, the defense, compromise or settlement defense of the such Third Party Claim if the Indemnifying Party Claim, (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 chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if pay (A) the Indemnifying Party shall not have given notice without prejudice of any of its election to conduct and control the defense of the rights as against any applicable Indemnifying Party), compromise or defend such Third Party Claim within (until such 15 day period, defense is assumed by an applicable Indemnifying Party) and (Bii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the applicable Indemnifying Party shall fail or Indemnifying Parties pursuant to conduct such defense diligently and the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in good faith, (C) connection with any Third Party Claim in which the Indemnified Party shall reasonably determine on conclude, based upon the written advice of outside counsel its counsel, that use (iii) there is a conflict of counsel selected by the interest between an applicable Indemnifying Party to represent and the Indemnified Party would present in the conduct of the defense of 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 (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 in each such case the Indemnified Party shall have the right to control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost assume and expense. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with direct the defense or prosecution of such Third Party Claim. In such an event, including furnishing such recordsthe applicable Indemnifying Party or Indemnifying Parties shall pay the reasonable fees and disbursements of their own counsel and one counsel to all the Indemnified Parties. Notwithstanding the foregoing, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party shall not have the right to assume control of such defense and 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 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 in connection therewith. In additionshall make available to such 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 party controlling the defense receipt of any Third Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretoappropriate confidentiality agreements.

Defense. Subject If any civil or administrative action that might reasonably be expected to the limitations set forth result in this Section 10.5(b), in the event of an Indemnifiable Claim (an "Action") is asserted or threatened by a Third Party Claimthird party against any Indemnified Party, the Indemnifying Party shall have may elect to control the right defense thereof with experienced counsel reasonably satisfactory to the Indemnified Party. Notwithstanding the foregoing, if the Indemnifying Party, within fifteen (exercisable by 15) days after receipt of a notice of such Action, fails to give 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, the defense, compromise or settlement of the Third Party Claim if that 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 chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice of its election to conduct and control undertaking the defense of the Third Party Claim within thereof or thereafter fails to timely assume 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 Partydefense, then in each such case the Indemnified Party shall have the right to 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 an Action, it will take all steps necessary in the defense, compromise prosecution, or settlement of such claim or litigation and will hold the Third Indemnified Party Claim 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 counsel the written consent of its choice at 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 (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 made 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’s sole cost . The Indemnifying Party shall conduct the defense of the Action actively and expensediligently, and the Indemnified Party will provide reasonable cooperation in the defense of the Action. In connection with any Third Party Claimall cases, from and after delivery the party that is not assigned the right to control the defense shall have the right to participate in the defense of a Claim Noticethe Action at its own expense, subject to the reasonable direction of the other party. Each of the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with give all reasonable assistance to the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party other party in connection therewith. In additionany case, the Indemnified Party shall, subject to Section 12.5, make available to the Indemnifying Party and 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 Indemnified Party is or was required to give notice. The party controlling having control of the defense of any Third Party Claim an Action shall keep notify the non-controlling other party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretoevery proposal, oral or written, for settlement, which it receives or makes.

Defense. Subject to the limitations set forth in this Section 10.5(b)Except as otherwise provided herein, in the event case of any claim asserted by a Person that is not a party to this Agreement (a "Third Party Claim"), an Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party Claim. If an Indemnifying Party elects to compromise or defend such Third Party Claim, the Indemnifying Party it shall have the right (exercisable by written notice to promptly notify the Indemnified Party within ten (10) days after and any other Indemnifying Parties of its intent to do so, and the Indemnified Party has given a Claim Notice 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 elect to conduct and control, through counsel notify the Indemnified Party of its choosing and at election to do so, or otherwise abandons the Indemnifying Party’s sole cost and expense, the defense, compromise or settlement defense of the such Third Party Claim if the Indemnifying Party Claim, (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 chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if pay (A) the Indemnifying Party shall not have given notice without prejudice of any of its election to conduct and control the defense of the rights as against any applicable Indemnifying Party), compromise or defend such Third Party Claim within (until such 15 day period, defense is assumed by an 59 65 applicable Indemnifying Party) and (Bii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the applicable Indemnifying Party shall fail or Indemnifying Parties pursuant to conduct such defense diligently and the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in good faith, (C) connection with any Third Party Claim in which the Indemnified Party shall reasonably determine on conclude, based upon the written advice of outside counsel its counsel, that use (iii) there is a conflict of counsel selected by the interest between an applicable Indemnifying Party to represent and the Indemnified Party would present in the conduct of the defense of 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 (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 in each such case the Indemnified Party shall have the right to control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost assume and expense. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with direct the defense or prosecution of such Third Party Claim. In such an event, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the applicable Indemnifying Party or Indemnifying Parties shall pay the reasonable fees and disbursements of their own counsel and one counsel to all the Indemnified Parties. Notwithstanding the foregoing, neither any Indemnifying Party nor the applicable Indemnified Party may settle or compromise any claim over the objection of any other Indemnifying Party that has any liability with respect to such claim or any other Indemnified Party that is a party to such claim; provided, however, that consent to settlement or compromise shall not be unreasonably withheld by any Person. In any event, except as otherwise provided herein, any applicable Indemnified Party and any Indemnifying Party that has any liability with respect to such 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 in connection therewith. In additionshall make available to such 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 party controlling the defense receipt of any Third Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretoappropriate confidentiality agreements.

Defense. Subject Except as otherwise provided herein, the Indemnifying ------- Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the limitations set forth in this Section 10.5(bIndemnified Party), in any Third Party Claim. If the event of a Indemnifying Party elects to compromise or defend such Third Party Claim, the Indemnifying Party shall have the right (exercisable by written notice to the Indemnified Party it shall, within ten (10) 30 days after the Indemnified Party has given a Claim Notice receiving notice of the Third Party Claim) to elect to conduct and control, through counsel notify the Indemnified Party of its choosing intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party’s sole cost and expense, in the defensecompromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or settlement of defend against the Third Party Claim if Claim, or fails to notify the Indemnifying Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (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 chosen pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice pursuant to the terms of its election this Agreement. Notwithstanding anything to conduct and control the defense of the contrary contained herein, in connection with any Third Party Claim within such 15 day period, (B) the Indemnifying Party shall fail to conduct such defense diligently and in good faith, (C) which the Indemnified Party shall reasonably determine on conclude, based upon the written advice of outside counsel its counsel, that use (x) there is a conflict of counsel selected by interest between the Indemnifying Party to represent and the Indemnified Party would present in the conduct of the defense of 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 (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 in each such case the Indemnified Party shall have the right to control assume and direct the defense, defense and compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In connection with any such Third Party Claim. In such an event, from the Indemnifying Party shall indemnify the Indemnified Party for the fees and after delivery disbursements of a Claim Notice, counsel to each of the Indemnifying Party and the Indemnified Party. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim (unless the sole relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full by the party settling or compromising such claim) over the objection of the other; provided, however, that consent to settlement or compromise shall not be -------- ------- unreasonably withheld. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such Third Party Claim. If the Indemnifying Party chooses to defend any claim, the Indemnified Party shall make available to the Indemnifying Party any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the receipt of appropriate confidentiality agreements. Notwithstanding anything to the contrary contained in this paragraph (b), in the event prompt action is required with respect to the defense of a Third Party Claim, the Indemnified Party shall, subject to the terms and shall cause their respective Affiliates and representatives toconditions of this Article X, cooperate fully in connection with have the right to assume the defense or prosecution of such Third Party Claim; provided, however, that in the event that the Indemnifying Party subsequently -------- ------- elects to assume the defense of such Third Party Claim, including furnishing such records, information then the provisions set forth in this paragraph (b) shall be applicable and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or shall, subject to the terms and conditions of this Article X, indemnify the Indemnified Party in connection therewith. In addition, for any costs and expenses incurred by the party controlling Indemnified Party prior to the defense date the Indemnifying Party assumes control of any such Third Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretoClaim.

Defense. Subject Except as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the limitations set forth in this Section 10.5(bIndemnified Party), in any Third Party Claim. If the event of a Indemnifying Party elects to compromise or defend such Third Party Claim, the Indemnifying Party shall have the right (exercisable by written notice to the Indemnified Party it shall, within ten (10) 30 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, the defense, compromise or settlement receiving notice of the Third Party Claim (10 days if the Indemnifying Party states in such notice that prompt action is required), notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (i) 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 chosen pay (without prejudice to any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim (until such defense is assumed by it the Indemnifying Party) and at its sole cost (ii) the costs and expense. Notwithstanding expenses of the foregoing, if (A) Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party shall not have given notice pursuant to the terms of its election this Agreement. Notwithstanding anything to conduct and control the defense of the contrary contained herein, in connection with any Third Party Claim within such 15 day period, (B) the Indemnifying Party shall fail to conduct such defense diligently and in good faith, (C) which the Indemnified Party shall reasonably determine on written conclude, based upon advice of its outside counsel legal counsel, that use (x) there is a conflict of counsel selected by interest between the Indemnifying Party to represent and the Indemnified Party would present in the conduct of the defense of 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 (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 in each such case the Indemnified Party shall have the right to control direct the defense, compromise or settlement defense of the such Third Party Claim with counsel the participation of its choice at the Indemnifying Party’s sole cost and expense. In connection with any Third Party Claim, from and after delivery of a Claim Noticesuch an event, the Indemnifying Party shall pay the reasonable fees and disbursements of counsel of the Indemnifying Party and one counsel to all the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party shallmay settle or compromise any claim (however, if the sole settlement relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full by the Indemnifying Party, the Indemnifying Party may settle such claim without the consent of the Indemnified Party) over the objection of the other; provided, however, that consent to settlement or compromise shall not be unreasonably withheld by the Indemnified Party. In any event, except as otherwise provided herein, the Indemnified Party and shall cause their respective Affiliates and representatives tothe Indemnifying Party may each participate, cooperate fully at its own expense, in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by . If the Indemnifying Party or chooses to defend any claim, the Indemnified Party in connection therewith. In additionshall 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 party controlling the defense receipt of any Third Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretoappropriate confidentiality agreements.

Defense. Subject If a Third Party Claim is made against the Indemnified Party, the Indemnifying Party shall be entitled to participate in the defense thereof and, if the Indemnifying Party so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party and reasonably satisfactory to the limitations set forth Indemnified Party. Should the Indemnifying Party so elect to assume and thereafter actively and in this Section 10.5(b), in good faith defend the event defense of a Third Party Claim, the Indemnifying Party shall have the right (exercisable by written notice not be liable 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, 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 for legal expenses subsequently incurred by the Indemnified Party in respect connection with the defense thereof; provided, however, that the Indemnified Party may participate therein through separate counsel chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) If the Indemnifying Party shall not have given notice of its election to conduct and control the defense of the Third Party Claim within assumes 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 Partydefense, then in each such case the Indemnified Party shall have the right to control participate in the defensedefense thereof and to employ counsel, compromise or settlement of at its own expense, separate from the Third Party Claim with counsel of its choice at employed by the Indemnifying Party’s sole cost , it being understood, however, that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenseexpenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof or actively and in good faith defend such Third Party Claim. In connection with If the Indemnifying Party chooses to defend any Third Party Claim, from and after delivery of a Claim Notice, all the Indemnifying Party and the Indemnified Party shall, and parties hereto shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information . Such cooperation shall include the retention and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by (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 (but in no event more than five (5) business days), chooses not to assume defense of a Third Party Claim or fails to defend such Third Party Claim actively and in good faith, the Indemnified Party in connection therewith. In additionshall (upon further notice) have the right to undertake the defense, the party controlling the defense compromise or settlement of any such Third Party Claim shall keep or consent to the non-controlling party advised entry of the status thereof and shall consider in good faith any recommendations made by the non-controlling party judgment with respect theretoto such Third Party Claim on behalf of, and for the account and risk of, the Indemnifying Party, and the Indemnifying Party shall have no right to challenge the Indemnified Party’s defense, compromise, settlement or consent to judgment.

Defense. Subject Except as otherwise provided herein, the Indemnifying ------- Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the limitations set forth in this Section 10.5(bIndemnified Party), in any Third Party Claim. If the event of a Indemnifying Party elects to compromise or defend such Third Party Claim, the Indemnifying Party shall have the right (exercisable by written notice to the Indemnified Party it shall, within ten (10) 30 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, the defense, compromise or settlement receiving notice of the Third Party Claim (10 days if the Indemnified Party states in such notice that prompt action is required), notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (i) 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 chosen 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 it the Indemnifying Party) and at its sole cost (ii) the costs and expense. Notwithstanding expenses of the foregoing, if (A) Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party shall not have given notice pursuant to the terms of its election this Agreement. Notwithstanding anything to conduct and control the defense of the contrary contained herein, in connection with any Third Party Claim within such 15 day period, (B) the Indemnifying Party shall fail to conduct such defense diligently and in good faith, (C) which the Indemnified Party shall reasonably determine on written conclude, based upon advice of its outside counsel legal counsel, that use (x) there is a conflict of counsel selected by interest between the Indemnifying Party to represent and the Indemnified Party would present in the conduct of the defense of 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 (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 in each such case the Indemnified Party shall have the right to control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost assume and expense. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with direct the defense or prosecution of such Third Party Claim. In such an event, including furnishing the Indemnifying Party shall pay the reasonable fees and disbursements of counsel of the Indemnifying Party and one counsel to all the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim (however, if the sole settlement relief payable to a third party in respect of such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested Third Party Claim is monetary damages that are paid in full by the Indemnifying Party, the Indemnifying Party may settle such claim without the consent of the Indemnified Party) over the objection of the other; provided, however, that consent to -------- ------- settlement or compromise shall not be unreasonably withheld by the Indemnified Party. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in connection therewith. In addition, the party controlling the defense of any such Third Party Claim Claim. If the Indemnifying Party chooses to defend any claim, the Indemnified Party shall keep make available to the non-controlling party advised 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 the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretoappropriate confidentiality agreements.

Defense. Subject Except as otherwise provided herein, an Indemnifying Party may elect to defend, at the Indemnifying Party’s own cost and expense and by the Indemnifying Party’s own counsel (which counsel shall be reasonably satisfactory to the limitations set forth in this Section 10.5(bIndemnified Party), any Third Party Claim. If the Indemnifying Party elects to defend such Third Party Claim, the Indemnifying Party shall, within ten (10) days after receiving notice of the Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the cost and expense of the Indemnifying Party, in the event defense of such Third Party Claim; provided that the Indemnified Party is hereby authorized (but not obligated) at any time after giving notice to the Indemnifying Party of such Third Party Claim but prior to receiving such notice from the Indemnifying Party to file any motion, answer or other pleading and to take any other action which the Indemnified Party or its counsel deem reasonably necessary to protect the Indemnified Party’s interests. If any Indemnifying Party elects not to defend the Third Party Claim, or fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (and during any other period in which an Indemnifying Party has been given a reasonable opportunity to assume, but has not assumed, the defense of such Third Party Claim) then (i) the Indemnified Party may (without prejudice to any of its rights against an Indemnifying Party), compromise or defend such Third Party Claim and (ii) the reasonable costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable as “Indemnifiable Losses” by the Indemnifying Party pursuant to this Article VI. If the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall be required to agree to any settlement, compromise or discharge of a Third Party Claim (1) that relates to the imposition of monetary damages only, (2) that the Indemnifying Party has recommended, (3) that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim (without regard to any limitations otherwise applicable hereunder), (4) that releases the Indemnified Party completely and (5) that would not otherwise adversely affect the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (but shall nonetheless remain liable for the fees and expenses of counsel incurred by the Indemnified party in defending such Third Party Claim as part of the “Indemnified Losses” hereunder) if the Third Party Claim is reasonably likely to result in the imposition of: (i) monetary damages in excess of 200% of the Indemnifying Party’s then remaining maximum liability hereunder or (ii) an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party. An Indemnified Party shall not settle or compromise any Action (to the extent such Indemnified Party is seeking indemnification in respect thereof) without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party elects to defend any Action, the Indemnified Party shall make available to the Indemnifying Party any Representatives or Information that are reasonably necessary or appropriate for such defense and such Representatives shall, when appropriate, furnish evidence, testimony and other assistance in connection with any such claim. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Parties may each participate, at its or their own expense, in the defense of such Third Party Claim; provided that if in the reasonable opinion of counsel to the Indemnified Party, there exists an actual or potential conflict of interest or differing defenses between the Indemnifying Party and the Indemnified Party with respect to such Third Party Claim, the Indemnifying Party shall have be liable for the right (exercisable by written notice to the Indemnified Party within ten (10) days after the Indemnified Party has given a Claim Notice reasonable fees and expenses 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, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall provide indemnification to the Indemnified Party in respect thereof; provided, however, that each jurisdiction for which the Indemnified Party may participate therein through separate determines counsel chosen by it is required (and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party such amounts 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 control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. In addition, the party controlling the defense of any Third Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretodeemed “Indemnifiable Losses” hereunder).

Defense. Subject to the limitations set forth in this Section 10.5(b7.5(b), in the event of a Third Party Claim, the Indemnifying Party shall have the right (exercisable by 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, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall provide indemnification to the Indemnified Party in respect thereof; provided, however, that the Indemnified Party may participate therein through separate counsel chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice of its election to conduct and control the defense of the Third Party Claim within such 15 day period, (B) the Indemnifying Party shall fail to conduct such defense diligently and in good faith, (C) the Indemnified Party shall reasonably determine on written advice of outside counsel that use 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 control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. In addition, the party controlling the defense of any Third Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect thereto.

Defense. Subject The Indemnified Party shall have the right and obligation to defend against, negotiate, settle or otherwise deal with any Third-Party Claim in good faith but otherwise in such manner as the limitations set forth Indemnified Party deems appropriate and to be represented by counsel of its own choice. The Indemnified Party shall not admit any liability with respect thereto or settle, compromise, pay or discharge the same without the consent of the Indemnifying Party (or, in the case of indemnification under Section 7.1(b), the Company Stockholder Representative), which consent shall not be unreasonably withheld, so long as the Indemnified Party is contesting or defending the same with reasonable diligence and in good faith; provided, however, that the Indemnifying Party may participate in any proceeding with counsel of its choice and at its expense. In the event the Indemnified Party fails to defend against, negotiate, settle or otherwise deal with such Third Party Claim as provided above in this Section 10.5(b7.3(b), in the event of a Third Party Claim, then the Indemnifying Party shall have the right (exercisable by 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 controldefend against, through counsel of its choosing and at the Indemnifying Party’s sole cost and expensenegotiate, the defense, compromise settle or settlement of otherwise deal with the Third Party Claim if in good faith and otherwise in such manner as 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 thereofdeems appropriate; provided, however, that the Indemnified Indemnifying Party may participate therein through separate counsel chosen by it and at its sole cost and expense. Notwithstanding will not consent to the foregoing, if entry of any judgment on or enter into any settlement with respect to the Third-Party Claim (A) in the Indemnifying Party shall not have given notice case of its election to conduct and control a settlement, unless the defense settlement includes, as an unconditional term thereof, the giving by the third party of a release of the Third Indemnified Party from all liability in respect of such Third-Party Claim within such 15 day period(other than pursuant to the terms of the settlement), (B) if 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 judgment or potential conflict of interest, or (D) the Third Party Claim is for injunctive, equitable settlement involves any injunctive or other non-monetary relief against equitable relief, without the prior written consent of the Indemnified Party, then and (C) if the judgment or settlement with respect to an Indemnified Party involves any amount in each such case excess of the indemnification obtained by the Indemnified Party shall have hereunder, without the right to control the defense, compromise or settlement prior written consent of the Third Party Claim with counsel of its choice at the Indemnifying Indemnified Party’s sole cost and expense. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. In addition, the party controlling the defense of any Third Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect thereto.

Defense. Subject Except as otherwise provided in this Agreement, the Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the limitations set forth in this Section 10.5(bSeller Indemnified Party or Buyer Indemnified Party, as the case may be), in any Third Party Claim. If the event of a Indemnifying Party elects to compromise or defend such Third Party Claim, it shall, within thirty (30) days after receiving notice of the Indemnifying Third Party shall have the right Claim (exercisable by written notice to the Indemnified Party within ten (10) days after if the Indemnified Party has given a Claim Notice 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 elect to conduct and control, through counsel of its choosing and at the Indemnifying Party’s sole cost and expense, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall provide indemnification to notify the Indemnified Party of its election to do so as provided in respect thereof; providedthis Section 8.04, howeveror otherwise abandons the defense of such Third Party Claim, that (1) the Indemnified Party may participate therein through separate counsel chosen 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 it the Indemnifying Party) and at its sole cost (2) the costs and expense. Notwithstanding expenses of the foregoing, if (A) Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party shall not have given notice pursuant to the terms of its election this Agreement. Notwithstanding anything to conduct and control the defense of the contrary contained in this Agreement, in connection with any Third Party Claim within such 15 day period, (B) the Indemnifying Party shall fail to conduct such defense diligently and in good faith, (C) which the Indemnified Party shall reasonably determine on conclude, based upon the written advice of outside counsel its counsel, that use (x) there is a conflict of counsel selected by interest between the Indemnifying Party to represent and the Indemnified Party would present in the conduct of the defense of 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 (y) there are specific defenses or claims 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 in each such case the Indemnified Party shall have the right to control participate in the defense, compromise or settlement defense of the such Third Party Claim with counsel of its choice at the Indemnifying such Indemnified Party’s sole cost and expense's own counsel. In connection with any Third Party Claim, from and after delivery of a Claim Noticesuch an event, the Indemnifying Party shall pay the reasonable fees and disbursements of counsel of the Indemnifying Party and one counsel to the Indemnified Party. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party shallmay settle or compromise any claim (however, if the sole settlement relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full by the Indemnifying Party, the Indemnifying Party may settle such claim without the consent of the Indemnified Party) over the objection of the other; provided, however, that consent to settlement or compromise shall not be unreasonably withheld by the Indemnified Party. In any event, except as otherwise provided in this Agreement, the Indemnified Party and shall cause their respective Affiliates and representatives tothe Indemnifying Party may each participate, cooperate fully at its own expense, in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by . If the Indemnifying Party or chooses to defend any claim, the Indemnified Party in connection therewith. In additionshall 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 party controlling the defense receipt of any Third Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretoappropriate confidentiality agreements.

Defense. Subject If any claim, demand or liability is asserted by any third party against any Indemnified Party, the Indemnifying Party shall be entitled to participate therein and defend any action or proceeding brought against the limitations set forth Indemnified Party in this Section 10.5(b)respect of matters embraced by the indemnity, in the event of a Third Party Claim, and the Indemnifying Party shall have the right (exercisable by 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, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall provide indemnification to the Indemnified Party in respect thereof; provided, however, that the Indemnified Party may participate therein through separate counsel chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice of its election to conduct and control the defense of the Third Party Claim within such 15 day period, (B) the Indemnifying Party shall fail subject to conduct such defense diligently and in good faith, (C) the Indemnified Party shall reasonably determine on written advice Party's approval in writing of outside counsel that use of counsel selected by the Indemnifying Party. After notice from the Indemnifying Party to represent the Indemnified Party would present of its election to assume the defense of such counsel with an actual claim or potential conflict of interestaction, or (D) the Third Indemnifying Party Claim is shall not be liable to the Indemnified Party under this Section 10 for injunctive, equitable any legal or other non-monetary relief against expenses subsequently incurred by the Indemnified Party, then Party in each such case connection with the defense thereof other than reasonable costs of investigation. In any action defended by the Indemnifying Party the Indemnified Party shall have the right to control be represented by its own counsel at its own expense unless (1) the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution employment of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested counsel 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 connection therewitheach of such cases such fees and expenses shall be paid by the Indemnifying Party. In addition, if the party controlling 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 Third Party Claim shall keep one such action or separate but substantially similar or related actions in the non-controlling party advised same jurisdiction arising out of the status same general allegations or circumstances, 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 Indemnified Parties). The Indemnifying Party will not, without Indemnified Party's written consent, settle or compromise any indemnifiable claim or consent to the entry of any judgment in respect thereof and unless such settlement, compromise or consent includes an unconditional release of the Indemnified Party from all liability in respect of such Indemnifiable Claim. The parties shall consider cooperate in good faith any recommendations made by the non-controlling defense of all third party with respect theretoclaims which may give rise to Indemnifiable Claims hereunder.

Defense. Subject to the limitations set forth in this Section 10.5(b), in the event of a Third Party Claim, the The Indemnifying Party shall have the right (exercisable by 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 controldirect, through counsel of its choosing and at the Indemnifying Party’s sole cost and expenseown choosing, the defense, compromise defense 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 any action or proceeding brought against the Indemnified Party in respect thereofof 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 Indemnifying Party elects to assume the defense of any such claim or proceeding, the Indemnified Party may participate therein through separate counsel chosen by it and in such defense at its sole cost and own expense. Notwithstanding the foregoing, if (A) If the Indemnifying Party shall not have given notice of its election fails to conduct and control the defense of the Third Party Claim within defend or, after commencing or undertaking any such 15 day perioddefense, (B) the Indemnifying Party shall fail fails to conduct prosecute or withdraws from such defense diligently and in good faithother than as a result of a settlement, (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 control the defensedirect, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s 's sole cost and expense, through counsel 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 connection with such Third Party Claim. The party directing the defense shall pursue such defense diligently and promptly. The parties shall cooperate in the defense of all Third Party Claims. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. In addition, the party controlling the defense of any Third Party Claim Claim, each party shall keep make available to the non-party controlling party advised such defense any books, records or other documents within its control that are reasonably requested in the course of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretoor necessary or appropriate for such defense.

Defense. Subject Except as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the limitations set forth in this Section 10.5(bIndemnified Party), in any Third Party Claim. If the event of a Indemnifying Party elects to compromise or defend such Third Party Claim, the Indemnifying Party shall have the right (exercisable by written notice to the Indemnified Party it shall, within ten (10) 30 days after the Indemnified Party has given a Claim Notice receiving notice of the Third Party Claim) to elect to conduct and control, through counsel notify the Indemnified Party of its choosing intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party’s sole cost and expense, in the defensecompromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or settlement of defend against the Third Party Claim if Claim, or fails to notify the Indemnifying Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (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 chosen pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice pursuant to the terms of its election this Agreement. Notwithstanding anything to conduct and control the defense of the contrary contained herein, in connection with any Third Party Claim within such 15 day period, (B) the Indemnifying Party shall fail to conduct such defense diligently and in good faith, (C) which the Indemnified Party shall reasonably determine on conclude, based upon the written advice of outside counsel its counsel, that use (x) there is a conflict of counsel selected by 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 represent the Indemnified Party would present such counsel with an actual which are different from or potential conflict of interest, or (D) additional to those available to the Third Indemnifying Party Claim is for injunctive, equitable or other non-monetary relief against and which could be materially adverse to the Indemnified Indemnifying Party, then in each such case the Indemnified Party shall have the right to control assume and direct the defense, defense and compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In connection with any such Third Party Claim. In such an event, from the Indemnifying Party shall indemnify the Indemnified Party for the fees and after delivery disbursements of a Claim Notice, counsel to each of the Indemnifying Party and the Indemnified Party. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim (unless the sole relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full by the party settling or compromising such claim) over the objection of the other; PROVIDED, HOWEVER, that consent to settlement or compromise shall not be unreasonably withheld. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such Third Party Claim. If the Indemnifying Party chooses to defend any claim, the Indemnified Party shall make available to the Indemnifying Party any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the receipt of appropriate confidentiality agreements. Notwithstanding anything to the contrary contained in this paragraph (b), in the event prompt action is required with respect to the defense of a Third Party Claim, the Indemnified Party shall, subject to the terms and shall cause their respective Affiliates and representatives toconditions of this Article X, cooperate fully in connection with have the right to assume the defense or prosecution of such Third Party Claim; PROVIDED, HOWEVER, that in the event that the Indemnifying Party subsequently elects to assume the defense of such Third Party Claim, including furnishing such records, information then the provisions set forth in this paragraph (b) shall be applicable and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or shall, subject to the terms and conditions of this Article X, indemnify the Indemnified Party in connection therewith. In addition, for any costs and expenses incurred by the party controlling Indemnified Party prior to the defense date the Indemnifying Party assumes control of any such Third Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretoClaim.

Defense. Subject Except as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the limitations set forth in this Section 10.5(bIndemnified Party), in any Third Party Claim. If the event of a Indemnifying Party elects to compromise or defend such Third Party Claim, the Indemnifying Party shall have the right (exercisable by written notice to the Indemnified Party it shall, within ten (10) 30 days after the Indemnified Party has given a Claim Notice receiving notice of the Third Party Claim) to elect to conduct and control, through counsel notify the Indemnified Party of its choosing intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party’s sole cost and expense, in the defensecompromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or settlement of defend against the Third Party Claim if Claim, or fails to notify the Indemnifying Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (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 chosen pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim and (ii) the reasonable costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice pursuant to the terms of its election this Agreement. Notwithstanding anything to conduct and control the defense of the contrary contained herein, in connection with any Third Party Claim within such 15 day period, (B) the Indemnifying Party shall fail to conduct such defense diligently and in good faith, (C) which the Indemnified Party shall reasonably determine on conclude, based upon the written advice of outside counsel its counsel, that use (x) there is a conflict of counsel selected by interest between the Indemnifying Party to represent and the Indemnified Party would present in the conduct of the defense of such counsel with an actual or potential conflict of interest36 42 Third Party Claim, or (Dy) the Third Party Claim is for injunctive, equitable or other non-monetary relief against 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 in each such case the Indemnified Party shall have the right to control assume and direct the defense, defense and compromise or settlement of the such Third Party Claim with counsel of its choice at insofar as it relates to the Indemnifying Indemnified Party’s sole cost and expense. In connection with any Third Party Claim, from and after delivery of a Claim Noticesuch an event, the Indemnifying Party shall pay the reasonable fees and disbursements of counsel to the Indemnifying Party or Parties and the Indemnified Party shallprovided 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 the other party or parties hereto) over the objection of the other, provided, however, that consent to settlement or compromise shall cause their respective Affiliates not be unreasonably withheld. In any event, except as otherwise provided herein, the Indemnified Party and representatives tothe Indemnifying Party may each participate, cooperate fully at its own expense, in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by . If the Indemnifying Party or chooses to defend any Claim, the Indemnified Party in connection therewith. In additionshall 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 party controlling the defense receipt of any Third Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretoappropriate confidentiality agreements.

Defense. Subject to the limitations set forth in this Section 10.5(b), in the event of a Third Party Claim, the The Indemnifying Party shall have the right (exercisable by 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 controldirect, through counsel of its choosing and at the Indemnifying Party’s sole cost and expenseown choosing, the defense, compromise defense 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 any action or proceeding brought against the Indemnified Party in respect thereofof 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 Indemnifying Party elects to assume the defense of any such claim or proceed ing, the Indemnified Party may participate therein through separate counsel chosen by it and in such defense at its sole cost and own expense. Notwithstanding the foregoing, if (A) If the Indemnifying Party shall not have given notice of its election fails to conduct and control the defense of the Third Party Claim within defend or, after commencing or undertaking any such 15 day perioddefense, (B) the Indemnifying Party shall fail fails to conduct prosecute or withdraws from such defense diligently and in good faithother than as a result of a settlement, (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 control the defensedirect, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s 's sole cost and expense, through counsel 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 con nection with such Third Party Claim. The party directing the defense shall pursue such defense diligently and promptly. The parties 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 any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. In addition, the party controlling the defense of any Third Party Claim Claim, each party shall keep make available to the non-party controlling party advised such defense any books, records or other documents within its control that are reasonably requested in the course of or necessary or appropriate for such defense, provided appropriate arrangements are made to safeguard the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretoconfidentiality of such materials.

Defense. Subject If a Third Party Claim is made against an Indemnified Party, then the Indemnifying Party shall be entitled to participate in the defense of the Third Party Claim, and if the Indemnifying Party so chooses, to assume the defense of the Third Party Claim. If the Indemnifying Party assumes such defense, then the Indemnified Party shall have the right, at its sole expense in each instance, to participate in the defense of the Third Party Claim and to employ counsel separate from the counsel employed by the Indemnifying Party, it being understood, however, that the Indemnifying Party shall control such defense, including any settlement or compromise of the Third Party Claim; provided, however, if the Indemnified Party has been advised by legal counsel that a joint representation would be inappropriate because of a conflict of interest, the Indemnified Party shall have the right, at the Indemnifying Party’s expense, to participate in the defense of such Third Party Claim and to employ its own counsel. However, the Indemnifying Party may not enter into or otherwise consent to any settlement or compromise without the prior written consent of the Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed), unless such settlement or compromise (A) includes a complete and unconditional release of liability of the Indemnified Party and (B) does not impose any obligations, restrictions or Losses on the Indemnified Party other than solely monetary obligations for which the Indemnified Party will be fully indemnified hereunder by the Indemnifying Party. If the Indemnifying Party chooses to defend any Third Party Claim, then the Parties shall cooperate in the defense of the Third Party Claim. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) provision to the limitations set forth in this Section 10.5(b), in Indemnifying Party of records that are reasonably relevant to the event Third Party Claim and the provision of access to employees on a mutually convenient basis to provide additional information and explanation of any material provided. The Indemnifying Party shall be entitled to assume and control the defense of a Third Party Claim, Claim only if (i) the Indemnifying Party shall have the right (exercisable by provides written notice to the Indemnified Party setting forth an election to so assume the defense within ten thirty (1030) days after of receiving the Indemnified Indemnification Notice relating to a Third Party has given a Claim Notice and an acknowledgment of its obligations to indemnify the Indemnifying Party under this Agreement in respect of such Third Party Claim, (ii) the Third Party ClaimClaim seeks solely monetary damages, (iii) to elect to conduct and controlthe Third Party Claim does not involve criminal allegations, through counsel of its choosing and at (iv) the Indemnifying Party’s sole cost and expense, Party conducts the defense, compromise or settlement defense of the Third Party Claim if actively and diligently with counsel reasonably satisfactory to the Indemnifying Party (iand for which purpose the Parties hereby agree that the counsel listed in Section 13.9 are satisfactory), (v) has acknowledged and agreed in writing thatit is reasonably likely that a judgment, if finding or other resolution of the same Third Party Claim that is adversely determined, adverse to the Indemnifying Party shall provide indemnification to will not have a material adverse impact on the Business of the Company or Buyer, and (vi) the Indemnifying Party has not determined in good faith that a joint representation would be inappropriate because of a conflict of interest. If the Indemnifying Party (x) notifies the Indemnified Party in respect thereof; provided, however, writing that the Indemnified Party may participate therein through separate counsel chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall elects not have given notice of its election to conduct and assume or to continue control the defense of the Third Party Claim within such 15 day periodor (y) is otherwise not entitled to assume or control the defense of the Third Party Claim, (B) the Indemnifying Party shall fail to conduct such defense diligently and in good faith, (C) then the Indemnified Party shall reasonably determine on (upon further written advice of outside counsel that use of counsel selected by notice to the Indemnifying Party Party) have the right to represent undertake the Indemnified Party would present such counsel with an actual or potential conflict defense 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 Claim; provided that the Indemnified Party shall have the right not settle or compromise, or enter into any agreement to control the defensesettle or compromise, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. In addition, the party controlling the defense of any Third Party Claim shall keep without the non-controlling party advised prior 60 written consent of the status thereof and Indemnifying Party (which shall consider in good faith any recommendations made by the non-controlling party with respect theretonot be unreasonably withheld, conditioned or delayed).

Defense. Subject In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to this Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the limitations set forth Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (a) the Indemnifying Party acknowledges to the Indemnified Party in this Section 10.5(b)writing, within fifteen (15) days after receipt of notice from the Indemnified Party, its obligations to indemnify the Indemnified Party with respect to all elements of such claim, (b) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against such third-party claim and fulfill its indemnification obligations hereunder, (c) the third-party claim involves only money damages and does not seek an injunction or other equitable relief, and (d) settlement or an adverse judgment of the third-party claim is not, in the event good faith judgment of the Indemnified Party, likely to establish a Third pattern or practice adverse to the continuing business interests of the Indemnified Party. The Indemnified Party Claimshall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the right (exercisable burden to prove by written notice to the Indemnified Party within ten (10) days after the Indemnified Party has given a Claim Notice preponderance 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, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall provide indemnification to the Indemnified Party in respect thereof; provided, however, evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation, to each other such assistance as they may participate therein through separate counsel chosen by it reasonably require of each other in order to insure the proper and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice of its election to conduct and control the defense of the Third Party Claim within such 15 day period, (B) the Indemnifying Party shall fail to conduct such defense diligently and in good faith, (C) the Indemnified Party shall reasonably determine on written advice of outside counsel that use 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 control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. In addition, the party controlling the adequate defense of any Third Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretoaction, suit or proceeding, whether or not subject to indemnification hereunder.

Defense. Subject to the limitations set forth in this Section 10.5(b), in the event of a Third Party Claim, the Indemnifying Party shall have the right (exercisable by 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, has provided evidence reasonably satisfactory to the 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 chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice of its election to conduct and control the defense of the Third Party Claim within such 15 day period, (B) the Indemnifying Party shall fail to conduct such defense diligently and in good faith, (C) the Indemnified Party shall reasonably determine on written advice of outside counsel that use 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 control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. In addition, the party controlling the defense of any Third Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect thereto.

Defense. Subject to the limitations set forth in this Section 10.5(b), in the event of a Third Party Claim, the The Indemnifying Party shall have the right (exercisable by 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 controldirect, through counsel of its choosing and at the Indemnifying Party’s sole cost and expenseown choosing, the defense, compromise defense 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 any action or proceeding brought against the Indemnified Party in respect thereofof 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 Indemnifying Party elects to assume the defense of any such claim or proceeding, the Indemnified Party may participate therein through separate counsel chosen by it and in such defense at its sole cost and own expense. Notwithstanding the foregoing, if (A) If the Indemnifying Party shall not have given notice of its election fails to conduct and control the defense of the Third Party Claim within such 15 day period, (B) the Indemnifying Party shall fail to conduct defend or if after commencing or undertaking any such defense diligently and in good faithfails to prosecute or withdraws from such defense other than as a result of a settlement, (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 control the defensedirect, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s 's sole cost and expense, through counsel 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 connection with such Third Party Claim. The party directing the defense shall pursue such defense diligently and promptly. The parties shall cooperate in the defense of all Third Party Claims. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. In addition, the party controlling the defense of any Third Party Claim Claim, each party shall keep make available to the non-party controlling party advised such defense any books, records, or other documents within its control that are reasonably requested in the course of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretoor necessary or appropriate for such defense.

Defense. Subject If a Third-Party Claim is made against the Indemnified Party, then the Indemnifying Party shall be entitled to participate in the defense thereof and, if the Indemnifying Party so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party and reasonably satisfactory to the limitations set forth in this Section 10.5(b), in Indemnified Party. If the event Indemnifying Party so elects to assume the defense of a Third 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 have the right (exercisable by written notice provide to the Indemnified Party within ten an undertaking stating that such Indemnifying Party is able to and will assume the payment of all defense fees and costs and (10ii) 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, the defense, compromise or settlement assumption 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 chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice of its election to conduct and control the defense of the Third such Third-Party Claim within such 15 day periodshall not signify any agreement, (B) obligation or commitment on the Indemnifying Party shall fail to conduct such defense diligently and in good faith, (C) the Indemnified Party shall reasonably determine on written advice part of outside counsel that use of counsel selected by the Indemnifying Party to represent assume or pay any amount awarded to a claimant in respect of such Third-Party Claim. If the Indemnified Indemnifying Party would present assumes 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 Partydefense, then in each such case the Indemnified Party shall have the right to control participate in the defensedefense thereof and to employ counsel, compromise or settlement of at its own expense, separate from the Third Party Claim with counsel of its choice at employed by the Indemnifying Party’s sole cost and expense, it being understood, however, that the Indemnifying Party shall control such defense. In connection with If the Indemnifying Party chooses to defend any Third Third-Party Claim, from and after delivery of a Claim Notice, then the Indemnifying Party and the Indemnified Party shall, and Parties shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution of such Third Third-Party Claim. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records that are reasonably relevant to such Third-Party Claim and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. If the Indemnifying Party has not within ten (10) Business Days after receipt of an Indemnification Notice relating to a Third-Party Claim, including furnishing chosen to assume defense of a Third-Party Claim or fails to defend such recordsThird-Party Claim actively and in good faith, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or then the Indemnified Party in connection therewith. In additionshall (upon further written notice) have the right to defend and, the party controlling the defense subject to Section 8.05(c), compromise or settle of any Third such Third-Party Claim shall keep or consent to the nonentry of judgment with respect to such Third-controlling party advised Party Claim, in each case at the cost and expense of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect theretoIndemnifying Party.

Defense. Subject to the limitations set forth in this Section 10.5(b), in the event of a Third Party Claim, the Indemnifying Party shall have the right (exercisable by written notice to the Indemnified Party within ten fifteen (1015) days after the Indemnified Party has given delivered 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 own cost and expense, the defense, compromise or settlement of the Third Party Claim if Claim; provided, that 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, howeverand (ii) if requested by the Indemnified Party, that has provided evidence reasonably satisfactory to the Indemnified Party of the Indemnifying Party’s financial ability to pay any Damages resulting from the Third Party Claim. If the Indemnifying Party elects to conduct and control the defense of the Third Party Claim, the Indemnified Party may participate therein through separate counsel chosen by it and at its sole own cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice of its election to conduct and control the defense of the Third Party Claim within such 15 15-day period, (B) the Indemnifying Party shall fail to conduct such defense diligently and in good faithdiligently, (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 control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In connection with any Third Party Claimevent, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates affiliates and representatives to, cooperate fully in connection with the defense or prosecution of such any Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. In addition, the party controlling the defense of any Third Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect thereto.