Common use of Defense Clause in Contracts

Defense. Upon receipt of notice under Subsection (a) from the Indemnitee, the Indemnifying Party will have the duty to either to compromise or defend, at its own expense and by counsel (reasonably satisfactory to Indemnitee), such Action. The Indemnifying Party will promptly (and in any event not more than [**] after receipt of the Indemnitee's original notice) notify the Indemnitee in writing of its intention to either compromise or defend such Action. Once the Indemnifying Party notifies the Indemnitee of its election to assume the defense of an Action, the Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee's reasonable costs of investigation and cooperation. However, the Indemnitee shall have the right to employ separate counsel and to participate in the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses of such counsel) if: (i) the use of the counsel chosen by the Indemnifying Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the Indemnitee, and the Indemnitee reasonably concludes that there may be legal defenses available to it that are different from or additional to those available to the Indemnifying Party (in which case the Indemnifying Party shall not have the right to assume the defense of such Action on the Indemnitee's behalf); (iii) the Indemnifying Party does not employ counsel satisfactory to the Indemnitee to represent the Indemnitee within a reasonable time after the Indemnitee's notice of such Action; (iv) the Indemnifying Party denies or fails to timely admit its obligation to defend and indemnify the Action; or (v) in the reasonable opinion of counsel to the Indemnitee, the claim could result in the Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a materially adverse effect on the ongoing business of the Indemnitee.

Defense. Upon receipt In connection with any Indemnifiable Claim giving rise to indemnity under this Agreement resulting from or arising out of notice under Subsection (a) from the Indemniteeany claim or legal proceeding by a party who is not a party to this Agreement, the Indemnifying Party will have the duty to either to compromise or defend, at its own sole cost and expense and by counsel (reasonably satisfactory shall, subject to Indemnitee), such Action. The Indemnifying Party will promptly (and in any event not more than [**] after receipt the prior written consent of the Indemnitee's original noticeIndemnified Party (which consent shall not be unreasonably withheld) notify the Indemnitee in writing of its intention to either compromise or defend such Action. Once the Indemnifying Party notifies the Indemnitee of its election to assume the defense of an Action, the Indemnifying Party is not liable to the Indemnitee for the fees of other any such claim or legal proceeding with legal counsel or any other expenses subsequently incurred approved by the Indemnitee Indemnified Party in connection with such defense, other than the Indemnitee's its reasonable costs of investigation and cooperationdiscretion. However, the Indemnitee The Indemnified Party shall have the right to employ separate counsel and be entitled to participate in (but not control) the defense of an Action (any such action, with its own counsel and the Indemnifying Party shall bear the reasonable feesat its own expense; provided, costshowever, and expenses of such counsel) if: if (i) the use of the counsel chosen by the Indemnifying Party would present named parties to any such counsel with a conflict of interest; proceeding (iiincluding any impleaded parties) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the IndemniteeIndemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (other than differing interests associated with an Indemnifying Party’s obligation to indemnify), and or (ii) the Indemnitee reasonably concludes that there may be legal defenses available to it that are different from employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or additional to those available to (iii) the Indemnifying Party (has not in which case the Indemnifying Party shall not have the right fact employed counsel to assume the defense of such Action action within a reasonable time; or (iv) the subject matter of the Indemnifiable Claim relates to the ongoing business of Buyer (as opposed solely to the payment of money damages) then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on the Indemnitee's behalf); (iii) a current basis. If after notification thereof, the Indemnifying Party does not employ counsel satisfactory assume the defense of any such claim or litigation resulting from the Indemnifiable Claim within a timely manner so as not to prejudice the rights of the Indemnified Party, the Indemnified Party may defend against such claim or litigation, in such manner as it may deem reasonably appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnitee to represent Indemnifying Party, on such terms as the Indemnitee Indemnified Party may deem appropriate (within a the exercise of reasonable time after the Indemnitee's notice discretion). The liability of such Action; (iv) the Indemnifying Party denies or fails shall be conclusively established by such settlement by the Indemnified Party to timely admit the extent entered into on the basis of its obligation reasonable discretion, the amount of such liability to defend include, but not be limited to, both the settlement consideration and indemnify the Action; or (v) in the reasonable opinion of counsel to costs and expenses, including attorneys’ fees, incurred by the Indemnitee, the claim could result Indemnified Party in the Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a materially adverse effect on the ongoing business of the Indemniteeeffecting such settlement.

Defense. Upon receipt 11.4.1 If any Third Party brings a claim or otherwise asserts that a Program Product (or its manufacture, sale or use) or a Licensed Antibody (or its manufacture, sale or use) infringes such Third Party’s Patent or misappropriates such Third Party’s Know-How (each, a “Third-Party Infringement Claim”), the Party first having notice of notice under Subsection the claim or assertion will promptly notify the other Party in writing. Context shall have (a) from sole control of, at its sole cost and expense, of any Third-Party Infringement Claim against Context or any of its Affiliates or Sublicensees, and (b) a first right to control any Third-Party Infringement Claim against BioAtla or any of its Affiliates or Sublicensees, in each case of (a) and (b), solely as and to the Indemnitee, the Indemnifying extent such Third-Party will Infringement Claim relates to a Program Product or Licensed Antibody. The non-lead Party shall also have the duty right, but not the obligation, to either to compromise or defendparticipate, at its own expense and by expense, in the defense thereof with counsel (reasonably satisfactory to Indemnitee), such Actionof its choice. The Indemnifying lead Party will promptly (and keep the non-lead Party reasonably informed about such proceedings. The non-lead Party shall reasonably cooperate to assist the lead Party in defending, contesting or otherwise protesting against any event not more than [**] after receipt of the Indemnitee's original notice) notify the Indemnitee in writing of its intention to either compromise or defend such Action. Once the Indemnifying Party notifies the Indemnitee of its election to assume the defense of an Actionactions, the Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or provided that any other expenses subsequently out-of-pocket costs incurred by the Indemnitee in connection with such defensecooperation shall be at the lead Party’s expense. Except as otherwise set forth in this Section 11.4.1, other than the Indemnitee's reasonable costs of investigation and cooperation. However, the Indemnitee shall have the right to employ separate counsel and to participate in the defense of an Action (and the Indemnifying each Party shall bear assume and pay all of its own out-of-pocket costs incurred in connection with any litigation or proceedings under this Section 11.4.1 including the reasonable fees, costs, fees and expenses of that Party’s counsel. EXECUTION VERSION 11.4.2 If a Party initiates a claim, litigation or proceeding in accordance with Section 11.4, the other Party agrees to be joined as a party plaintiff where necessary under Applicable Law for such counsel) if: (i) initiating Party to initiate and maintain such claim, litigation or proceeding. Each Party agrees to provide the use other Party with reasonable assistance and cooperation with respect to any claims, litigations or proceedings conducted under Section 11.4, with the reasonable internal and out-of-pocket costs and expenses of the counsel chosen providing such assistance and cooperation to be borne by the Indemnifying Party would present such counsel with a conflict of interest; (ii) conducting the actual claim, litigation or potential defendants in, or targets of, such Action include both the Indemnifying Party and the Indemnitee, and the Indemnitee reasonably concludes that there may be legal defenses available to it that are different from or additional to those available to the Indemnifying Party (in which case the Indemnifying Party shall not have the right to assume the defense of such Action on the Indemnitee's behalf); (iii) the Indemnifying Party does not employ counsel satisfactory to the Indemnitee to represent the Indemnitee within a reasonable time after the Indemnitee's notice of such Action; (iv) the Indemnifying Party denies or fails to timely admit its obligation to defend and indemnify the Action; or (v) in the reasonable opinion of counsel to the Indemnitee, the claim could result in the Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a materially adverse effect on the ongoing business of the Indemniteeproceeding.

Defense. Upon receipt of notice under Subsection (a) from the Indemnitee, the Indemnifying Party will have the duty to either to compromise or defend, at its own expense and by counsel (reasonably satisfactory to Indemnitee), such Action. The Indemnifying Party will promptly (and in any event not more than [**] twenty (20) days after receipt of the Indemnitee's original notice) notify the Indemnitee in writing of its intention to either compromise or defend such Action. Once the Indemnifying Party notifies the Indemnitee of its election to assume the defense of an Action, the Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee's reasonable costs of investigation and cooperation. However, the Indemnitee shall have the right to employ separate counsel and to participate in the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses of such counsel) if: (i) the use of the counsel chosen by the Indemnifying Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the Indemnitee, and the Indemnitee reasonably concludes that there may be legal defenses available to it that are different from or additional to those available to the Indemnifying Party (in which case the Indemnifying Party shall not have the right to assume the defense of such Action on the Indemnitee's behalf); (iii) the Indemnifying Party does not employ counsel satisfactory to the Indemnitee to represent the Indemnitee within a reasonable time after the Indemnitee's notice of such Action; (iv) the Indemnifying Party denies or fails to timely admit its obligation to defend and indemnify the Action; or (v) in the reasonable opinion of counsel to the Indemnitee, the claim could result in the Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a materially adverse effect on the ongoing business of the Indemnitee.

Defense. Upon 10.3.1 Promptly after the receipt by any person entitled to indemnification under this Article X of notice under Subsection of (ai) from any claim or (ii) the Indemniteecommencement of any action or proceeding, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to this Article X (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party will have the duty to either to compromise or defend, at its own expense and by counsel (reasonably satisfactory to Indemnitee), such Action. The Indemnifying Party will promptly (and in any event not more than [**] after receipt of the Indemnitee's original notice) notify the Indemnitee in writing of its intention to either compromise or defend such Action. Once the Indemnifying Party notifies the Indemnitee of its election to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an Action, injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the Indemnifying Party is not liable in the conduct of the defense of such action. Failure by the Indemnifying Party to notify the Aggrieved Party of its election to defend any such proceeding or action within a reasonable time, but in no event more than fifteen (15) days after written notice thereof shall have been given to the Indemnitee for Indemnifying Party, shall be deemed a waiver by the fees Indemnifying Party of other its right to defend such action. 10.3.2 If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement of, or any other expenses subsequently incurred by the Indemnitee judgment entered in connection with with, such defenseclaim or litigation. The Aggrieved Party may participate, other than the Indemnitee's reasonable costs of investigation and cooperation. Howeverat its expense, the Indemnitee shall have the right to employ separate counsel and to participate in the defense of an Action (and such claim or litigation provided that the Indemnifying Party shall bear direct and control the reasonable fees, costs, and expenses defense of such counsel) if: (i) claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the use defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the counsel chosen by the Indemnifying Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants inAggrieved Party, or targets ofenter into any settlement, such Action include both except with the Indemnifying Party and written consent of the Indemnitee, and the Indemnitee reasonably concludes that there may be legal defenses available to it that are different from or additional to those available to the Indemnifying Party (in which case Aggrieved Party. 10.3.3 If the Indemnifying Party shall not have the right to assume the defense of any such Action on claim or litigation resulting therefrom, the Indemnitee's behalf); (iii) Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party does not employ counsel satisfactory shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigation. 10.3.4 Notwithstanding anything to the Indemnitee contrary herein contained, TRC shall be entitled to represent the Indemnitee within a reasonable time after the Indemnitee's notice of such Action; (iv) the Indemnifying Party denies control any cleanup, containment, remediation, related proceeding, or fails to timely admit its obligation to defend and indemnify the Action; or (v) other action or proceeding arising from or in the reasonable opinion of counsel to the Indemniteeconnection with any environmental, the claim could result in the Indemnitee becoming subject to injunctive relief health or relief other than the payment of Damages that could have a materially adverse effect on the ongoing business of the Indemniteesafety liability or any hazardous materials or activities.

Defense. Upon receipt of notice under Subsection (a) from Other than with respect to Taxes, as to which Section 8.3 controls to the Indemniteeextent inconsistent with this Section, if any claim, demand or liability is asserted by any third party against any Indemnified Party, the Indemnifying Party will have shall upon the duty to either to compromise written request of the Indemnified Party defend any actions or defend, at its own expense and proceedings brought against the Indemnified Party in respect of matters embraced by counsel (reasonably satisfactory to Indemnitee), such Actionthe indemnity. The Indemnifying Party will promptly (and in shall have the right to control the defense of any event not more than [**] after receipt Indemnifiable Claim; provided, however, that the Indemnified Party shall have the right to control the defense of a claim under either of the Indemnitee's original noticefollowing circumstances: (i) notify the Indemnitee in writing of its intention to either compromise or defend such Action. Once the Indemnifying Party notifies the Indemnitee of its election fails to assume the defense of an Action, Indemnifiable Claim within 15 days after receiving written notice of the Indemnifying Party is not liable existence of the claim or fails to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee's reasonable costs of investigation and cooperation. However, the Indemnitee shall have the right to employ separate counsel and to participate in diligently conduct the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses of any such counsel) if: (i) the use of the counsel chosen by the Indemnifying Party would present such counsel with a conflict of interest; claim; or (ii) the actual or potential defendants in, or targets of, such Action include both Indemnified Party shall reasonably conclude that there is a conflict of interest between the Indemnifying Party and the Indemnitee, and Indemnified Party in the Indemnitee reasonably concludes that conduct of the defense of such claim or there may be legal are specific defenses available to it that the Indemnified Party which are different from or additional to those available to the Indemnifying Party (Party, in either of which case events the Indemnifying Party shall not have pay the right fees and disbursements of counsel to assume each of the defense of such Action on Indemnifying Party and the Indemnitee's behalf); (iii) Indemnified Party. If the Indemnifying Party does not employ counsel satisfactory assume such defense or the Indemnified Party has the right to control the Indemnitee defense of the claim, the Indemnified Party may compromise or settle the claim on behalf of and for the account and risk of the Indemnifying Party, who shall be bound by the result. The Indemnifying Party shall not, without the written consent of the Indemnified Party (which consent shall not be unreasonably withheld), settle or compromise any Indemnifiable Claim or permit a default or consent to represent entry of any judgment unless the Indemnitee within a reasonable time after the Indemnitee's notice of such Action; (iv) claimant and the Indemnifying Party denies or fails provide to timely admit its obligation the Indemnified Party an unqualified release from all liability in respect of the Claim. In all cases, the party without the right to defend and indemnify control the Action; or (v) defense of an Indemnifiable Claim may participate in the reasonable opinion of counsel to the Indemnitee, the claim could result in the Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a materially adverse effect on the ongoing business of the Indemniteedefense at its own expense.

Defense. Upon receipt of notice under Subsection (a) from The Indemnifying Party shall have the Indemniteeright, at its expense and at its election, to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such event, the Indemnifying Party will have shall reimburse the duty to either to compromise or defend, at its own expense and by counsel (reasonably satisfactory to Indemnitee), Indemnified Party for all the Indemnified Party's reasonable out-of-pocket expenses as a result of such Actionassumption. The Indemnifying Party will promptly (and in any event not more than [**] after receipt election of the Indemnitee's original notice) notify the Indemnitee in writing of its intention to either compromise or defend such Action. Once the Indemnifying Party notifies the Indemnitee of its election to assume the defense such control shall be made within ninety (90) days of an Actionreceipt of notice of Claim, failing which the Indemnifying Party is shall be deemed to have elected not liable to assume such control. If the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with Indemnifying Party elects to assume such defense, other than the Indemnitee's reasonable costs of investigation and cooperation. Howevercontrol, the Indemnitee Indemnified Party shall have the right to employ separate counsel be informed and consulted with respect to the negotiation, settlement or defenses of such Claim and to participate in retain counsel to act on its behalf, but the defense fees and disbursements of an Action (and such counsel shall be paid by the Indemnified Party unless the Indemnifying Party shall bear consents to the reasonable fees, costs, and expenses retention of such counsel) if: (i) counsel or unless the use of the counsel chosen by the Indemnifying Party would present such counsel with a conflict of interest; (ii) the actual named parties to any action or potential defendants in, or targets of, such Action proceeding include both the Indemnifying Party and the IndemniteeIndemnified 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 Indemnitee reasonably concludes 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 there 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 be legal defenses available make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to it that are different the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from or additional to those available the third party, pay the amount of such difference to the Indemnifying Party. (b) If the Indemnifying Party (in which case fails to assume control of the defense of any Claim, the Indemnified Party shall have the exclusive right to consent, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defense of any Claim, the Indemnifying Party shall not have settle any Claim without the right to assume the defense of such Action on the Indemnitee's behalf); (iii) the Indemnifying Party does not employ counsel satisfactory to the Indemnitee to represent the Indemnitee within a reasonable time after the Indemnitee's notice of such Action; (iv) the Indemnifying Party denies or fails to timely admit its obligation to defend and indemnify the Action; or (v) in the reasonable opinion of counsel to the Indemnitee, the claim could result in the Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a materially adverse effect on the ongoing business written consent of the IndemniteeIndemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed, unless such settlement provides solely for monetary damages or other monetary payments.

Defense. Upon receipt In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other than the Indemnified Party, the Indemnifying Party, at the sole cost and expense of the Indemnifying Party (or, in the case of the Stockholders' Representative, at the sole cost and expense of the Stockholders), may, upon written notice under Subsection to the Indemnified Party, assume the defense of any such claim or legal proceeding if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party (aor in the case of the Stockholders' Representative, the Stockholders) from to indemnify the IndemniteeIndemnified Party with respect to all elements of such claim. If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party will have shall select counsel reasonably acceptable to the duty Indemnified Party to either to compromise conduct the defense of such claims or defendlegal proceedings and at the sole cost and expense of the Indemnifying Party (or in the case of the Stockholders' Representative, at its own the sole cost and expense and by counsel (reasonably satisfactory to Indemnitee), such Actionof the Stockholders) shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party will promptly (and in shall not consent to a settlement of, or the entry of any event not more than [**] after receipt judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnitee's original noticeIndemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) notify the Indemnitee in writing of its intention to either compromise or defend such Action. Once the Indemnifying Party notifies the Indemnitee of its election to assume the defense of an Actionany such action, the Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee's reasonable costs of investigation and cooperation. However, the Indemnitee shall have the right to employ separate its own counsel and to participate in the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses of such counsel) if: (i) the use of the counsel chosen by the Indemnifying Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the Indemnitee, and the Indemnitee reasonably concludes that there may be legal defenses available to it that are different from or additional to those available to the Indemnifying Party (in which case the Indemnifying Party shall not have the right to assume the defense of such Action on the Indemnitee's behalf); (iii) at its own expense. If the Indemnifying Party does not employ counsel satisfactory assume the defense of any such claim or litigation resulting therefrom within 30 days after the date such claim is made: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnitee to represent Indemnifying Party, on such terms as the Indemnitee within a reasonable time after the Indemnitee's notice of such Action; Indemnified Party may deem appropriate, and (ivb) the Indemnifying Party denies shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense (or fails to timely admit its obligation to defend and indemnify the Action; or (v) in the reasonable opinion case of counsel to the IndemniteeStockholders' Representative, at the expense of the Stockholders). If the Indemnifying Party (or, in the case of the Stockholders' Representative, the Stockholders) thereafter seeks to question the manner in which the Indemnified Party defended such third party claim could result or the amount or nature of any such settlement, the Indemnifying Party (or, in the Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a materially adverse effect on the ongoing business case of the IndemniteeStockholders, the Stockholders' Representative) shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third party claim in a reasonably prudent manner.

Defense. Upon receipt In the event any Person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice under Subsection or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (athe "Notice") from to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the Indemniteenext sentence, the Indemnifying Party will shall have the duty option, at its sole cost and expense, to either retain counsel for the Indemnified Party to compromise defend any such demand, claim or defendlawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense and by counsel (reasonably satisfactory to Indemnitee)expense, such Action. The Indemnifying Party will promptly (and in any event not more than [**] after receipt of the Indemnitee's original notice) notify the Indemnitee in writing of its intention to either compromise or defend such Action. Once the Indemnifying Party notifies the Indemnitee of its election to assume the defense of an Action, the Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee's reasonable costs of investigation and cooperation. However, the Indemnitee shall have the right to employ separate counsel and to participate in the defense of an Action (and the Indemnifying Party shall bear the reasonable feesany suit, costsaction or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, and expenses of such counsel) if: however, if (i) the use of the counsel chosen by the Indemnifying Party would present named parties to any such counsel with a conflict of interest; proceeding (iiincluding any impleaded parties) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the IndemniteeIndemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnitee reasonably concludes that there may be legal defenses available to it that are different from Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or additional to those available to (iii) the Indemnifying Party (has not in which case the Indemnifying Party shall not have the right fact employed counsel to assume the defense of such Action on action within a reasonable time; then, the Indemnitee's behalf); (iii) Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party does not employ on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel satisfactory chosen by it that there may be one or more legal defenses available to the Indemnitee such Indemnified Party which are different from or in addition to represent the Indemnitee within a reasonable time after the Indemnitee's notice of such Action; (iv) those which have been asserted by the Indemnifying Party denies and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or fails to timely admit its obligation to defend lawsuit on behalf of such Indemnified Party and indemnify the Action; or (v) in will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable opinion fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the Indemnitee, extent the claim could result in the Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a materially adverse effect on the ongoing business Indemnifying Party's defense of the Indemniteeaction is actually prejudiced by such failure.

Defense. Upon receipt In the event any person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, then the party receiving notice under Subsection of such event shall promptly notify the other party or parties of the demand, claim or lawsuit. Within ten (a10) from days after notice by the IndemniteeIndemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party will shall have the duty option, at its sole cost and expense, to either retain counsel for the Indemnified Party, to compromise defend any such demand, claim or defendlawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense and by counsel (reasonably satisfactory to Indemnitee)expense, such Action. The Indemnifying Party will promptly (and in any event not more than [**] after receipt of the Indemnitee's original notice) notify the Indemnitee in writing of its intention to either compromise or defend such Action. Once the Indemnifying Party notifies the Indemnitee of its election to assume the defense of an Action, the Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee's reasonable costs of investigation and cooperation. However, the Indemnitee shall have the right to employ separate counsel and to participate in the defense of an Action any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses of such counsel) if: (ia) the use of the counsel chosen by the Indemnifying Party would present named parties to any such counsel with a conflict of interest; proceeding (iiincluding any impleaded parties) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the IndemniteeIndemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, or (b) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (c) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnitee reasonably concludes Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to it that such Indemnified Party which are different from or additional to those available to and which have not been asserted by the Indemnifying Party, the Indemnifying Party (in which case will not have at the election of the Indemnified Party, the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall not have fail to respond within ten (10) days after receipt of the right to assume Notice, the Indemnified Party may retain counsel and conduct the defense of such Action on demand, claim or lawsuit, as it may in its sole discretion deem proper, at the Indemnitee's behalf); (iii) sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party does on a current basis. Except as explicitly provided in this Section 9.3(b), failure to provide Notice shall not employ counsel satisfactory to limit the Indemnitee to represent the Indemnitee within a reasonable time after the Indemnitee's notice rights of such Action; (iv) the Indemnifying Party denies or fails party to timely admit its obligation to defend and indemnify the Action; or (v) in the reasonable opinion of counsel to the Indemnitee, the claim could result in the Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a materially adverse effect on the ongoing business of the Indemniteeindemnification.

Defense. Upon receipt of notice under Subsection (a) Each Party shall notify the other in writing of any allegations it receives from a Third Party that the IndemniteeDevelopment or Commercialization of the Product or use of the Licensed Technology infringes the intellectual property rights of such Third Party. Such notice shall be provided promptly, but in no event after more than forty five (45) days, following receipt of such allegations. (b) In the event that a Party receives notice that it or any of its Affiliates have been individually named as a defendant in a legal proceeding by a Third Party alleging infringement of a Third Party’s patents or other intellectual property right as a result of the Development or Commercialization of the Product or use of the Licensed Technology, such Party shall immediately notify the other Party in writing and in no event notify such other Party later than forty five (45) days after the receipt of such notice. Such written notice shall include a copy of any summons or complaint (or the equivalent thereof) received regarding the foregoing. Each Party shall assert and not waive the joint defense privilege with respect to all communications between the Parties reasonably the subject thereof. In such event, the Indemnifying Party will Parties shall agree how best to mitigate or control the defense of any such legal proceeding; provided however, that EDESA shall assume the primary responsibility for the conduct of the defense of any such claim that is specific to the Field, at EDESA’s expense, and LICENSOR shall assume the primary responsibility for the conduct of the defense of any other such claim, at LICENSOR’s expense. Notwithstanding the foregoing, LICENSOR may forego assuming the primary responsibility for the conduct of the defense of any such claim outside the Field, in which case EDESA shall have the duty right, but not the obligation, to either assume such primary responsibility at its own expense. The Party that does not assume primary responsibility for the conduct of the defense shall have the right, but not the obligation, to compromise participate and be separately represented in any such suit at its sole option and at its own expense. Each Party shall reasonably cooperate with the Party conducting the defense of the claim. If a Party or defendany of its Affiliates have been individually named as a defendant in a legal proceeding relating to the alleged infringement of a Third Party’s patents or other intellectual property right as a result of the Development or Commercialization of the Product, the other Party shall be allowed to join in such action, at its own expense and by counsel (reasonably satisfactory to Indemnitee), such Action. The Indemnifying Party will promptly (and in any event not more than [**] after receipt of the Indemnitee's original notice) notify the Indemnitee in writing of its intention to either compromise or defend such Action. Once the Indemnifying Party notifies the Indemnitee of its election to assume the defense of an Action, the Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee's reasonable costs of investigation and cooperation. However, the Indemnitee shall have the right to employ separate counsel and to participate in the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses of such counsel) if: (i) the use of the counsel chosen by the Indemnifying Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the Indemnitee, and the Indemnitee reasonably concludes that there may be legal defenses available to it that are different from or additional to those available to the Indemnifying Party (in which case the Indemnifying Party shall not have the right to assume the defense of such Action on the Indemnitee's behalf); (iii) the Indemnifying Party does not employ counsel satisfactory to the Indemnitee to represent the Indemnitee within a reasonable time after the Indemnitee's notice of such Action; (iv) the Indemnifying Party denies or fails to timely admit its obligation to defend and indemnify the Action; or (v) in the reasonable opinion of counsel to the Indemnitee, the claim could result in the Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a materially adverse effect on the ongoing business of the Indemniteeexpense.

Defense. Upon receipt (i) In the case of notice under Subsection (a) from the Indemniteea third party claim, the Indemnifying Party will have may participate in the duty defense thereof and, if it so chooses and irrevocably acknowledges its obligation to either indemnify the Indemnified Party therefor, control the defense of an Indemnifiable Claim with counsel reasonably satisfactory to compromise the Indemnified Party; provided, however, that if the Indemnified Party reasonably believes that (x) a material conflict of interest between the Indemnified Party and the Indemnifying Party with respect to the claim or defendits defense exists or is likely to develop during the pendency of the litigation, and as a result of such conflict, the Indemnifying Party’s incentive to defend such claim could reasonably be expected to be materially compromised, or (y) the claim raises serious issues regarding the integrity or moral character of the Indemnified Party or any of its Affiliates, or of its of their senior management, in its or their capacity as such (which issues are a fundamental element of the claim) then the Indemnified Party shall be entitled to control the defense of the claim in accordance with paragraph (b)(ii) of this Section 9.3, it being understood that the mere allegation of fraud, willful misconduct, bad faith, malfeasance or any similar such claim as part of multiple claims constituting an Indemnifiable Claim, shall not be deemed, in and of itself, to provide the basis for the Indemnified Party’s rights as set forth in this clause (y). In all cases, the party without the right to control the defense of the Indemnifiable Claim may participate in the defense at its own expense expense. In the case of a third party claim, the Indemnifying Party shall inform the Indemnified Party within 20 days of receiving the written notice seeking indemnification whether the party elects to control the defense and by counsel (reasonably satisfactory irrevocably acknowledges its obligation to Indemnitee), such Actionindemnify the Indemnified Party therefor. The Indemnifying Party will promptly (shall be liable for the reasonable fees and in expenses of counsel employed by the Indemnified Party for any event not more than [**] after receipt of the Indemnitee's original notice) notify the Indemnitee in writing of its intention to either compromise or defend such Action. Once period during which the Indemnifying Party notifies the Indemnitee of its election to assume has not assumed the defense thereof, provided that it either irrevocably acknowledges in writing its indemnity obligations with respect to the Indemnity Claim or it is determined by a court of an Action, competent jurisdiction that it is obligated hereunder to provide such indemnification. If the Indemnifying Party is disputes its liability with respect to a potential Indemnifiable Claim or the amount thereof (whether or not liable it desires to defend the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee's reasonable costs of investigation and cooperation. HoweverIndemnified Party against a third party claim), the Indemnitee parties shall have the right endeavor in good faith to employ separate counsel and to participate in the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses of settle such counsel) if: (i) the use of the counsel chosen by the Indemnifying Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the Indemnitee, and the Indemnitee reasonably concludes that there may be legal defenses available to it that are different from or additional to those available to the Indemnifying Party (in which case the dispute. The Indemnifying Party shall not have settle or compromise a third party claim or legal proceeding without the right prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, delayed or conditioned; provided that such prior written consent shall not be required with respect to assume any Indemnifiable Claim that relates to any item referred to in Sections 9.1(c), (d), (e), (f), (g), (h), or (i), except with respect to any Indemnifiable Claim relating to Remediation of Hazardous Substances that is covered by Section 5.18 shall remain subject in all respects to the defense terms of such Action on Section 5.18. The Indemnified Party shall not settle or compromise a third party claim for which it is entitled to indemnification hereunder without the Indemnitee's behalf); (iii) prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not employ counsel satisfactory to assume the Indemnitee to represent the Indemnitee defense of any third party claim or litigation resulting therefrom within a reasonable time 20 days after the Indemnitee's date it receives notice of such Action;claim from the Indemnified Party, the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including settling such claim or litigation, after giving notice to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate. Notwithstanding anything in this Section 9.3 to the contrary, if for any reason (for example the effect of the limitations set forth in Sections 9.4 or 9.5 or evidence that an Indemnifiable Loss may be attributable to events before or after Closing) there is any uncertainty whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or Purchaser, the parties will (A) cooperate in good faith to determine whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or Purchaser, (B) until such uncertainty is resolved to the mutual satisfaction of the parties, jointly determine who will control the defense and settlement of any such Indemnifiable Claim and how such defense and settlement will be handled, (C) cooperate with each other in the defense and settlement of such Indemnifiable Claim and the exchange of information relevant thereto, (D) unless otherwise agreed, share the out-of-pocket costs of such defense and settlement (including the costs of investigation, response and mitigation) equally until the parties’ respective rights to indemnification for such costs are resolved, and (E) treat the defense and settlement of such Indemnifiable Claim as a joint and common defense, including any joint defense agreement which may be entered into by the parties. (ivii) In the case of claims described in the proviso to the first sentence of Section 9.3(b)(i), the Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such claim, at the expense of the Indemnifying Party, but the Indemnifying Party denies will not be bound by any compromise or fails settlement effected without its consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnified Party shall conduct the defense in good faith and in a commercially reasonable manner, and shall inform the Indemnifying Party periodically, or upon the Indemnifying Party’s reasonable request, of the status of the litigation. The Indemnified Party’s choice of counsel shall be subject to timely admit its obligation the consent of the Indemnifying Party, such consent not to defend and indemnify the Action; or (v) be unreasonably withheld or delayed. The Indemnifying Party may participate in the reasonable opinion defense thereof, at its own expense. If, in order to preserve existing insurance for a claim against IPC currently maintained by Dynegy, it is necessary to permit Dynegy’s insurer to conduct the defense of counsel IPC, Purchaser will consider in good faith waiving or sharing its right to control such defense so that Dynegy’s insurance rights are not lost, subject to the Indemnitee, condition that the insurer accepts the tender of the claim could result without reservation of rights. Notwithstanding anything to the contrary in this Section 9.3(b), any Indemnifiable Claim relating to Hazardous Substances that is covered by Section 5.18 shall remain subject in all respect to the Indemnitee becoming subject to injunctive relief or relief other than the payment terms of Damages that could have a materially adverse effect on the ongoing business of the IndemniteeSection 5.18.

Defense. Upon receipt of notice under Subsection (a) from If the Indemniteefacts presumably constitute a Claim under this Agreement, the Indemnifying Party will have shall be entitled to assume the duty defense or the legal proceeding thereof, by means of a written notice addressed to either to compromise the Protected Parties, including the hiring of counsel or defendaccountants, at its own expense cost and by counsel (reasonably satisfactory to Indemnitee), such Actionexpense. The Indemnifying Party will promptly (and in any event not more than [**] after receipt Each one of the Indemnitee's original notice) notify the Indemnitee in writing of its intention to either compromise or defend such Action. Once the Indemnifying Party notifies the Indemnitee of its election to assume the defense of an Action, the Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee's reasonable costs of investigation and cooperation. However, the Indemnitee Protected Parties shall have the right to employ separate use counsel independently from counsel retained by the Indemnifying Party, in any legal action and to participate in it. The fees and expenses of counsel retained by the defense of an Action Protected Parties shall be at all times for its exclusive account. (and b) If the Indemnifying Party shall bear does not assume the reasonable fees, costs, and expenses defense or legal proceeding of such counsel) if: a Claim within (i) fifteen (15) days from the use of the counsel chosen notice thereof (either provided by the Indemnifying Party would present such counsel with a conflict of interest; ANDINA or by CMF) or (ii) within the actual period in which it is necessary to make a defense in a legal proceeding, whichever is the lesser, the Protected Parties, as the case may be, shall be entitled to settle, compromise or potential defendants inagree upon a conciliation with respect to that claim, or targets of, such Action include both without the consent of the Indemnifying Party and the Indemnitee, and the Indemnitee reasonably concludes that there may be legal defenses available to it that are different from Party. (c) CMF or additional to those available to the Indemnifying Party (in which case the Indemnifying Party shall not have agree upon the right to assume settlement of any claim which determines: (i) an indemnification that does not consist of the defense payment of such Action monetary damages, or (ii) that could produce an adverse impact or effect on the Indemnitee's behalf); (iii) Business or on the financial condition of CMF, without the prior written consent of all the Protected Parties. The Protected Parties shall not be responsible for any settlement or conciliation of a Claim asserted by the Indemnifying Party does not employ counsel satisfactory to the Indemnitee to represent the Indemnitee within a reasonable time after the Indemnitee's notice of such Action;or CMF, without said consent. (ivd) Whether the Indemnifying Party denies elects or fails to timely admit its obligation not to defend or submit said Claim in a legal proceeding, CMF and indemnify all the Action; or (v) parties that execute this Agreement shall cooperate in the reasonable opinion defense or legal process thereof and shall deliver the registries, information and testimonies that may be necessary and reasonably requested; and shall attend the meetings, summons, testimonials, hearings, lawsuits and appeals that may be reasonably requested in connection therewith. Whenever the law so determines, or by virtue of counsel to a written agreement of the IndemniteeParties, the claim could result in Indemnifying Party may subrogate all its rights of CMF or the Indemnitee becoming subject to injunctive relief or relief other than Protected Parties, as the payment of Damages that could have a materially adverse effect on the ongoing business of the Indemniteecase may be.

Defense. Upon receipt In the event any person or entity not a party to this Agreement shall make a demand or claim, file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of notice matters embraced by the indemnity under Subsection this Agreement, then the Indemnified Party shall promptly notify the Indemnifying Party of the demand, claim or lawsuit. Within fifteen (a15) from days after delivery of the IndemniteeIndemnification Notice to the Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party will shall have the duty option, at its sole cost and expense, to either retain counsel for the Indemnified Party to compromise defend any such demand, claim or defendlawsuit, provided that counsel who shall conduct the defense of such demand, claim or lawsuit shall be approved by the Indemnified Party whose approval shall not unreasonably be withheld or delayed. The Indemnified Party shall have the right, at its own expense and by counsel (reasonably satisfactory to Indemnitee)expense, such Action. The Indemnifying Party will promptly (and in any event not more than [**] after receipt of the Indemnitee's original notice) notify the Indemnitee in writing of its intention to either compromise or defend such Action. Once the Indemnifying Party notifies the Indemnitee of its election to assume the defense of an Action, the Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee's reasonable costs of investigation and cooperation. However, the Indemnitee shall have the right to employ separate counsel and to participate in the defense of an Action (and the Indemnifying Party shall bear the reasonable feesany suit, costsaction or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, and expenses of such counsel) if: however, if (i) the use of the counsel chosen by the Indemnifying Party would present named Parties to any such counsel with a conflict of interest; proceeding (iiincluding any impleaded Parties) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the IndemniteeIndemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them (other than differing interests associated with an Indemnifying Party’s obligation to indemnify), and or (ii) the Indemnitee reasonably concludes that there may be legal defenses available to it that are different from employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or additional to those available to (iii) the Indemnifying Party (has not in which case the Indemnifying Party shall not have the right fact employed counsel to assume the defense of such Action on action within fifteen (15) days after delivery of the Indemnitee's behalf); (iii) Indemnification Notice; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party does not employ counsel satisfactory on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, shall consent to entry of any judgment or enter into any settlement without the Indemnitee to represent consent of the Indemnitee within a reasonable time after Indemnified Party. In the Indemnitee's notice of such Action; (iv) event that the Indemnifying Party denies shall fail to respond within 15 days after delivery of the Indemnification Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or fails lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to timely admit its obligation provide an Indemnification Notice shall not limit the rights of any party to defend and indemnify the Action; or (v) in the reasonable opinion of counsel indemnification, except to the Indemnitee, extent that the claim could result in the Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a materially adverse effect on the ongoing business of the IndemniteeIndemnifying Party is actually prejudiced thereby.

Defense. Upon receipt An indemnifying Party shall, except as provided in the immediately following sentence and the last sentence of notice under Subsection (a) from the Indemniteethis paragraph, the Indemnifying Party will have the duty to either to compromise or defend, at its own expense and by counsel (reasonably satisfactory to Indemnitee), such Action. The Indemnifying Party will promptly (and in any event not more than [**] after receipt of the Indemnitee's original notice) notify the Indemnitee in writing of its intention to either compromise or defend such Action. Once the Indemnifying Party notifies the Indemnitee of its election to assume the defense of an Actionsuch Claim, the Indemnifying Party is not liable with counsel reasonably satisfactory to the Indemnitee for indemnified Party to represent the indemnified Party in such proceeding and shall pay the fees and disbursements of other such counsel or related to such proceeding. In any other expenses subsequently incurred by the Indemnitee in connection with such defenseproceeding, other than the Indemnitee's reasonable costs of investigation and cooperation. However, the Indemnitee any indemnified Party shall have the right to employ separate retain its own counsel and to participate in the defense of an Action (such Claim, but the fees and the Indemnifying Party shall bear the reasonable fees, costs, and expenses expense of such counsel) if: counsel shall be at the expense of such indemnified Party unless: (i) the use indemnifying Party and the indemnified Party shall have mutually agreed to the retention Exhibit 10.103 of the counsel chosen by the Indemnifying Party would present such counsel with a conflict of interest; counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential defendants indiffering interests between them. It is agreed that the indemnifying Party shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or targets ofrelated proceedings in the same jurisdiction, such Action include both be liable for the Indemnifying Party fees and the Indemnitee, and the Indemnitee reasonably concludes that there may be legal defenses available to it that are different from or additional to those available to the Indemnifying Party expenses of more than one separate firm (in which case the Indemnifying addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not have be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the right plaintiff, the indemnifying Party agrees to assume indemnify the defense indemnified Party from and against any Losses by reason of such Action on settlement or judgment. No indemnifying Party shall, without the Indemnitee's behalf); prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (iiix) the Indemnifying Party does not employ counsel satisfactory to the Indemnitee to represent the Indemnitee within a reasonable time after the Indemnitee's notice if such settlement; (A) involves any form of such Action; (iv) the Indemnifying Party denies or fails to timely admit its obligation to defend and indemnify the Action; or (v) in the reasonable opinion of counsel to the Indemnitee, the claim could result in the Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a materially money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the ongoing business indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the Indemniteedefense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4.

Defense. Upon receipt of notice under Subsection (a) from Promptly after the Indemniteereceipt by any person entitled to indemnification under Section 7.2 and 7.3 herein of notice of (i) any claim or (ii) the commencement of any action or proceeding, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 7.2 and 7.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party will have the duty to either to compromise or defend, at its own expense and by counsel (reasonably satisfactory to Indemnitee), such Action. The Indemnifying Party will promptly (and in any event not more than [**] after receipt of the Indemnitee's original notice) notify the Indemnitee in writing of its intention to either compromise or defend such Action. Once the Indemnifying Party notifies the Indemnitee of its election to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an Action, injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the Indemnifying Party is not liable in the conduct of the defense of such action. Failure by the Indemnifying Party to notify the Aggrieved Party of its election to defend any such proceeding or action within a reasonable time, but in no event more than 15 days after written notice thereof shall have been given to the Indemnitee for Indemnifying Party, shall be deemed a waiver by the fees Indemnifying Party of other its right to defend such action. (b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any other expenses subsequently incurred by the Indemnitee judgment in connection with such defenseclaim or litigation resulting therefrom. The Aggrieved Party may participate, other than the Indemnitee's reasonable costs of investigation and cooperation. Howeverat its expense, the Indemnitee shall have the right to employ separate counsel and to participate in the defense of an Action (and such claim or litigation provided that the Indemnifying Party shall bear direct and control the reasonable fees, costs, and expenses defense of such counsel) if:claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party. (ic) the use of the counsel chosen by the Indemnifying Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the Indemnitee, and the Indemnitee reasonably concludes that there may be legal defenses available to it that are different from or additional to those available to the Indemnifying Party (in which case If the Indemnifying Party shall not have the right to assume the defense of any such Action on claim or litigation resulting therefrom, the Indemnitee's behalf); (iii) Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party does not employ counsel satisfactory shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all (d) Subject to Section 7.5 hereof, the Indemnitee rights to represent indemnification hereunder (i) shall apply only to claims of any amount made by the Indemnitee within a reasonable time Aggrieved Party from and after the Indemnitee's point at which a single claim or an aggregate of several claims equals $5,000.00; and (ii) apply to claims made by either party against the other whereby written notice of such Action; (iv) the Indemnifying Party denies or fails to timely admit its obligation to defend and indemnify the Action; or (v) in the reasonable opinion of counsel to the Indemnitee, the claim could result in has been made and delivered within the Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a materially adverse effect on the ongoing business period of the Indemniteeapplicable statute of limitations.

Defense. Upon receipt In the event any third Party shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice under Subsection or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (athe “Notice”) from to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the Indemniteenext sentence, the Indemnifying Party will shall have the duty option, at its sole cost and expense, to either retain counsel for the Indemnified Party to compromise defend any such demand, claim or defendlawsuit; provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense and by counsel (reasonably satisfactory to Indemnitee)expense, such Action. The Indemnifying Party will promptly (and in any event not more than [**] after receipt of the Indemnitee's original notice) notify the Indemnitee in writing of its intention to either compromise or defend such Action. Once the Indemnifying Party notifies the Indemnitee of its election to assume the defense of an Action, the Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee's reasonable costs of investigation and cooperation. However, the Indemnitee shall have the right to employ separate counsel and to participate in the defense of an Action (and the Indemnifying Party shall bear the reasonable feesany suit, costsaction or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, and expenses of such counsel) if: however, if (i) the use of the counsel chosen by the Indemnifying Party would present named parties to any such counsel with a conflict of interest; proceeding (iiincluding any impleaded parties) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the IndemniteeIndemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnitee reasonably concludes that there may be legal defenses available to it that are different from Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or additional to those available to (iii) the Indemnifying Party (has not in which case the Indemnifying Party shall not have the right fact employed counsel to assume the defense of such Action on action within a reasonable time; then, the Indemnitee's behalf); (iii) Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party does not employ on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel satisfactory chosen by it that there may be one or more legal defenses available to the Indemnitee such Indemnified Party which are different from or in addition to represent the Indemnitee within a reasonable time after the Indemnitee's notice of such Action; (iv) those which have been asserted by the Indemnifying Party denies and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or fails to timely admit its obligation to defend lawsuit on behalf of such Indemnified Party and indemnify the Action; or (v) in will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable opinion fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the Indemnitee, extent the claim could result in the Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a materially adverse effect on the ongoing business Indemnifying Party’s defense of the Indemniteeaction is actually prejudiced by such failure.

Defense. Upon receipt In connection with any claim giving rise to indemnity ------- under this Agreement resulting from or arising out of notice under Subsection (a) from the Indemniteeany claim or legal proceeding by a party who is not a 28 party to this Agreement, the Indemnifying Party will have the duty to either to compromise or defend, at its own sole cost and expense and by counsel (reasonably satisfactory to Indemnitee), such Action. The Indemnifying Party will promptly (and in any event not more than [**] after receipt of the Indemnitee's original notice) notify the Indemnitee in writing of its intention to either compromise or defend such Action. Once the Indemnifying Party notifies the Indemnitee of its election to shall assume the defense of an Action, the Indemnifying Party is not liable to the Indemnitee for the fees of other any such claim or legal proceeding with legal counsel or any other expenses subsequently incurred approved by the Indemnitee Indemnified Party in connection with such defense, other than the Indemnitee's its reasonable costs of investigation and cooperationdiscretion. However, the Indemnitee The Indemnified Party shall have the right to employ separate counsel and be entitled to participate in (but not control) the defense of an Action (any such action, with its own counsel and the Indemnifying Party shall bear the reasonable feesat its own expense; provided, costshowever, and expenses of such counsel) if: if (i) the use of the counsel chosen by the Indemnifying Party would present named parties to any such counsel with a conflict of interest; proceeding (iiincluding any impleaded parties) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the IndemniteeIndemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (other than differing interests associated with an Indemnifying Party's obligation to indemnify), and or (ii) the Indemnitee reasonably concludes that there may be legal defenses available to it that are different from employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or additional to those available to (iii) the Indemnifying Party (has not in which case the Indemnifying Party shall not have the right fact employed counsel to assume the defense of such Action action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on the Indemnitee's behalf); (iii) a current basis. If after notification thereof, the Indemnifying Party does not employ counsel satisfactory assume the defense of any such claim or litigation resulting from a claim within a timely manner so as not to prejudice the rights of the Indemnified Party, the Indemnified Party may defend against such claim or litigation, in such manner as it may deem reasonably appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnitee to represent Indemnifying Party, on such terms as the Indemnitee Indemnified Party may deem appropriate (within a the exercise of reasonable time after the Indemnitee's notice discretion). The liability of such Action; (iv) the Indemnifying Party denies or fails shall be conclusively established by such settlement by the Indemnified Party to timely admit the extent entered into on the basis of its obligation reasonable discretion, the amount of such liability to defend include, but not be limited to, both the settlement consideration and indemnify the Action; or (v) in the reasonable opinion of counsel to costs and expenses, including attorneys' fees, incurred by the Indemnitee, the claim could result Indemnified Party in the Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a materially adverse effect on the ongoing business of the Indemniteeeffecting such settlement.

Defense. Upon receipt In connection with any claim giving rise to indemnity under this Agreement resulting from or arising out of notice under Subsection (a) from the Indemniteeany claim or legal proceeding by a party who is not a party to this Agreement, the Indemnifying Party will have the duty to either to compromise or defend, at its own sole cost and expense and by counsel (reasonably satisfactory to Indemnitee), such Action. The Indemnifying Party will promptly (and in any event not more than [**] after receipt of the Indemnitee's original notice) notify the Indemnitee in writing of its intention to either compromise or defend such Action. Once the Indemnifying Party notifies the Indemnitee of its election to shall assume the defense of an Action, the Indemnifying Party is not liable to the Indemnitee for the fees of other any such claim or legal proceeding with legal counsel or any other expenses subsequently incurred approved by the Indemnitee in connection with such defenseIndemnified Party, other than the Indemnitee's reasonable costs of investigation and cooperationwhich approval shall not be unreasonably withheld. However, the Indemnitee The Indemnified Party shall have the right to employ separate counsel and be entitled to participate in (but not control) the defense of an Action (any such action, with its own counsel and the Indemnifying Party shall bear the reasonable feesat its own expense; provided, costshowever, and expenses of such counsel) if: if (i) the use of the counsel chosen by the Indemnifying Party would present named parties to any such counsel with a conflict of interest; proceeding (iiincluding any impleaded parties) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the IndemniteeIndemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (other than differing interests associated with the Indemnifying Party’s obligation to indemnify), and or (ii) the Indemnitee reasonably concludes that there may be legal defenses available to it that are different from employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or additional to those available to (iii) the Indemnifying Party (has not in which case the Indemnifying Party shall not have the right fact employed counsel to assume the defense of such Action action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on the Indemnitee's behalfa current basis. Subject to Section 6.4(a); (iii) , if after notification thereof, the Indemnifying Party does not employ counsel satisfactory to assume the Indemnitee to represent the Indemnitee defense of any such claim or litigation resulting from a claim within a reasonable time after timely manner so as not to prejudice the Indemnitee's notice rights of the Indemnified Party, the Indemnified Party may defend against such Action; (iv) the Indemnifying Party denies claim or fails litigation, in such manner as it may deem reasonably appropriate. Each party shall cooperate, and cause its respective Affiliates to timely admit its obligation to defend and indemnify the Action; or (v) cooperate, in the reasonable opinion defense or prosecution of counsel any such third party claim and shall furnish or cause to the Indemniteebe furnished such records, the claim could result information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in the Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a materially adverse effect on the ongoing business of the Indemniteeconnection therewith.

Defense. Upon receipt of notice under Subsection (a) from Promptly after the Indemniteereceipt by any person entitled to indemnification under Section 5.1 and 5.2 of this Agreement of notice of (i) any claim or (ii) the commencement of any action or proceeding, such party (the “Aggrieved Party”) will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 5.1 and 5.2 of this Agreement (the “Indemnifying Party”), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party will have the duty to either to compromise or defend, at its own expense and by counsel (reasonably satisfactory to Indemnitee), such Action. The Indemnifying Party will promptly (and in any event not more than [**] after receipt of the Indemnitee's original notice) notify the Indemnitee in writing of its intention to either compromise or defend such Action. Once the Indemnifying Party notifies the Indemnitee of its election to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an Action, injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the Indemnifying Party is not liable in the conduct of the defense of such action. Failure by the Indemnifying Party to notify the Aggrieved Party of its election to defend any such proceeding or action within a reasonable time, but in no event more than 15 days after written notice thereof shall have been given to the Indemnitee for Indemnifying Party, shall be deemed a waiver by the fees Indemnifying Party of other its right to defend such action. (b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any other expenses subsequently incurred by the Indemnitee judgment in connection with such defenseclaim or litigation resulting therefrom. The Aggrieved Party may participate, other than the Indemnitee's reasonable costs of investigation and cooperation. Howeverat its expense, the Indemnitee shall have the right to employ separate counsel and to participate in the defense of an Action (and such claim or litigation provided that the Indemnifying Party shall bear direct and control the reasonable fees, costs, and expenses defense of such counsel) if:claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party. (ic) the use of the counsel chosen by the Indemnifying Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the Indemnitee, and the Indemnitee reasonably concludes that there may be legal defenses available to it that are different from or additional to those available to the Indemnifying Party (in which case If the Indemnifying Party shall not have the right to assume the defense of any such Action on claim or litigation resulting therefrom, the Indemnitee's behalf); (iii) Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party does not employ counsel satisfactory shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Indemnitee Aggrieved Party in the defense against such claim or litigation. (d) The rights to represent indemnification hereunder shall apply to claims made by either party against the Indemnitee within a reasonable time after the Indemnitee's other whereby written notice of such Action; (iv) the Indemnifying Party denies or fails to timely admit its obligation to defend and indemnify the Action; or (v) in the reasonable opinion of counsel to the Indemnitee, the claim could result in has been made and delivered within the Indemnitee becoming subject to injunctive relief or relief other than one-year period following the payment of Damages that could have a materially adverse effect on the ongoing business of the IndemniteeClosing Date unless otherwise provided herein.

Defense. Upon receipt of notice under Subsection Section 9.2 (a) from the Indemnitee, the Indemnifying Party will have the duty to either to compromise or defend, at its own expense and by counsel (reasonably satisfactory to Indemnitee), such Action. The Indemnifying Party will promptly (defend or settle the claim, at its own expense and in by its own counsel, any event not more than [**] after receipt such matter involving the asserted liability of the Indemnitee's original notice) notify the Indemnitee in writing of its intention to either compromise or defend such Action. Once the Indemnifying Party notifies the Indemnitee of its election to assume the defense of an ActionIf, the Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee's reasonable costs of investigation and cooperation. However, the Indemnitee shall have the right to employ separate counsel and to participate in the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses of such counsel) if: (i) the use of the counsel chosen by the Indemnifying Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the Indemnitee, and the Indemnitee reasonably concludes that there may be legal defenses available to it that are different from or additional to those available to the Indemnifying Party (in which case the Indemnifying Party shall not have the right to assume the defense of such Action on the Indemnitee's behalf); (iii) the Indemnifying Party does not employ counsel satisfactory to the Indemnitee to represent the Indemnitee within a reasonable time after the Indemnitee's notice of such Action; (iv) the Indemnifying Party denies or fails to timely admit its obligation to defend and indemnify the Action; or (v) in the reasonable opinion of counsel to the Indemnitee, the claim could result in the Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages money damages that could have a materially adverse effect on adversely affect the ongoing business of the IndemniteeIndemnitee in any manner, the Indemnitee will have the right, at its option, to pay, compromise or defend such asserted liability by its own counsel and its reasonable costs, expenses, and any payment made therewith will be included as part of the indemnification obligation of the Indemnifying Party hereunder, subject to the determination of whether the Indemnifying Party is obligated to indemnify the Indemnitee pursuant to this Article 9. In any event, the Indemnitee and the Indemnifying Party may participate, at their own expense, in the defense of such asserted liability, provided, however, that such defense expense of the Indemnitee will not be an indemnified claim if the Indemnifying Party is defending such claim.

Defense. Upon receipt Subject to the limitations set forth in this Section 10.5(b), in the event of notice under Subsection (a) from the Indemniteea Third Party Claim, the Indemnifying Party will shall have the duty right (exercisable by written notice to either the Indemnified Party within fifteen (15) days after the Indemnified Party has delivered a Claim Notice of the Third Party Claim) to conduct and control, through counsel of its choosing that is reasonably acceptable to the Indemnified Party and at the Indemnifying Party’s own cost and expense, the defense, compromise or defendsettlement of the Third Party 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, 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. 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 own expense cost and by counsel expense. Notwithstanding the foregoing, if (reasonably satisfactory to Indemnitee), such Action. The Indemnifying Party will promptly (and in any event not more than [**] after receipt of the Indemnitee's original noticeA) notify the Indemnitee in writing of its intention to either compromise or defend such Action. Once the Indemnifying Party notifies the Indemnitee shall not have given notice of its election to assume conduct and control the defense of an Actionthe Third Party Claim within such 15-day period, the Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee's reasonable costs of investigation and cooperation. However, the Indemnitee shall have the right to employ separate counsel and to participate in the defense of an Action (and B) the Indemnifying Party shall bear the reasonable feesfail to conduct such defense diligently, costs, and expenses of such counsel) if: (iC) the Indemnified Party shall reasonably determine that use of the counsel chosen selected by the Indemnifying Party to represent the Indemnified Party would present such counsel with a an actual or potential conflict of interest; , or (iiD) the actual Third Party Claim is for injunctive, equitable or potential defendants inother non-monetary relief against the Indemnified Party, then the Indemnified Party shall have the right to control the defense, compromise or targets ofsettlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In any event, such Action include both from and after delivery of a Claim Notice, the Indemnifying Party and the IndemniteeIndemnified Party shall, and shall cause their respective affiliates and representatives to, cooperate fully in connection with the Indemnitee reasonably concludes that there defense or prosecution of any Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be legal defenses available to it that are different from or additional to those available to reasonably requested by the Indemnifying Party (or the Indemnified Party in which case connection therewith. In addition, the Indemnifying Party shall not have the right to assume party controlling the defense of such Action on any Third Party Claim shall keep the Indemnitee's behalf); (iii) the Indemnifying Party does not employ counsel satisfactory to the Indemnitee to represent the Indemnitee within a reasonable time after the Indemnitee's notice of such Action; (iv) the Indemnifying Party denies or fails to timely admit its obligation to defend and indemnify the Action; or (v) in the reasonable opinion of counsel to the Indemnitee, the claim could result in the Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a materially adverse effect on the ongoing business non-controlling party advised of the Indemniteestatus thereof and shall consider in good faith any recommendations made by the non-controlling party with respect thereto.

Defense. Upon receipt of notice under Subsection (a) from the IndemniteeIf any such action is brought against an indemnified party, the Indemnifying Party indemnifying party will have the duty be entitled to either to compromise or defend, at its own expense participate in and by counsel (reasonably satisfactory to Indemnitee), such Action. The Indemnifying Party will promptly (and in any event not more than [**] after receipt of the Indemnitee's original notice) notify the Indemnitee in writing of its intention to either compromise or defend such Action. Once the Indemnifying Party notifies the Indemnitee of its election to assume the defense thereof to the extent that it may wish, with counsel reasonably satisfactory to such indemnified party, and after such notice from the indemnifying party to such indemnified party of an Actionits election so to assume the defense thereof, the Indemnifying Party is indemnifying party shall not be liable to the Indemnitee such indemnified party for the fees of other counsel any legal or any other expenses subsequently incurred by the Indemnitee latter in connection with such defense, other than the Indemnitee's reasonable costs of investigation and cooperation. However, the Indemnitee shall have the right to employ separate counsel and to participate in the defense of an Action (and thereof unless the Indemnifying Party shall bear the reasonable fees, costs, and expenses of such counsel) if: (i) the use of the counsel chosen by the Indemnifying Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the Indemnitee, and the Indemnitee reasonably concludes that there may be legal defenses available to it that are different from or additional to those available to the Indemnifying Party (in which case the Indemnifying Party shall not have the right indemnifying party has failed to assume the defense of such Action on the Indemnitee's behalf); (iii) the Indemnifying Party does not claim and to employ counsel reasonably satisfactory to such indemnified person. Notwithstanding any of the foregoing to the contrary, the indemnified party will be entitled to select its own counsel and assume the defense of any action brought against it if the indemnifying party fails to select counsel reasonably satisfactory to the Indemnitee to represent indemnified party, the Indemnitee within a reasonable time after the Indemnitee's notice expenses of such Action; (iv) defense is to be paid by the Indemnifying Party denies indemnifying party. No indemnifying party shall consent to entry of any judgment or fails enter into any settlement with respect to timely admit its obligation a claim without the consent of the indemnified party, which consent shall not be unreasonably withheld, or unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to defend and indemnify the Action; or (v) in the reasonable opinion such indemnified party of counsel a release from all liability with respect to the Indemniteesuch claim. No indemnified party shall consent to entry of any judgment or enter into any settlement of any such action, the claim could result in defense of which has been assumed by an indemnifying party, without the Indemnitee becoming subject to injunctive relief or relief other than the payment consent of Damages that could have a materially adverse effect on the ongoing business of the Indemniteesuch indemnifying party, which consent shall not be unreasonably withheld.

Defense. Upon receipt In the event any Third Party makes a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice under Subsection or becoming aware of such event will promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (athe “Notice”) from to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the Indemniteenext sentence, the Indemnifying Party will have the duty option, at its sole cost and expense, to either retain counsel for the Indemnified Party to compromise defend any such demand, claim or defendlawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party, which approval will not unreasonably be withheld. The Indemnified Party will have the right, at its own expense and by counsel (reasonably satisfactory to Indemnitee)expense, such Action. The Indemnifying Party will promptly (and in any event not more than [**] after receipt of the Indemnitee's original notice) notify the Indemnitee in writing of its intention to either compromise or defend such Action. Once the Indemnifying Party notifies the Indemnitee of its election to assume the defense of an Action, the Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee's reasonable costs of investigation and cooperation. However, the Indemnitee shall have the right to employ separate counsel and to participate in the defense of an Action any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses of such counsel) if: (iA)(i) the use of the counsel chosen by the Indemnifying Party would present named parties to any such counsel with a conflict of interest; proceeding (iiincluding any impleaded parties) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the IndemniteeIndemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnitee reasonably concludes that there may be legal defenses available to it that are different from Indemnifying Party has not retained separate counsel for the Indemnified Party and (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or additional to those available to (B) the Indemnifying Party (has not in which case the Indemnifying Party shall not have the right fact employed counsel to assume the defense of such Action on action within a reasonable time; then, the Indemnitee's behalf); (iii) Indemnified Party will have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses will be paid by the Indemnifying Party does on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party which consent will not employ counsel satisfactory to be unreasonably withheld. In the Indemnitee to represent the Indemnitee within a reasonable time after the Indemnitee's notice of such Action; (iv) event that the Indemnifying Party denies will fail to respond within twenty days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or fails lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses will be paid by the Indemnifying Party on a current basis. Failure to timely admit its obligation provide Notice will not limit the rights of such party to defend and indemnify the Action; or (v) in the reasonable opinion of counsel indemnification, except to the Indemnitee, extent the claim could result in the Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a materially adverse effect on the ongoing business Indemnifying Party’s defense of the Indemniteeaction is prejudiced by such failure.

Defense. Upon receipt of notice under Subsection (a) from the IndemniteeIf any claim, demand or liability is asserted by any third party against any Indemnified Party, the Indemnifying Party will shall be entitled to participate therein and defend any action or proceeding brought against the Indemnified Party in respect of matters embraced by the indemnity, and the Indemnifying Party shall have the duty right to either conduct and control the defense subject to compromise or defend, at its own expense and by counsel (reasonably satisfactory to Indemnitee), such Action. The Indemnifying Party will promptly (and in any event not more than [**] after receipt of the IndemniteeIndemnified Party's original notice) notify the Indemnitee approval in writing of its intention to either compromise or defend such Actionoutside counsel selected by the Indemnifying Party. Once After notice from the Indemnifying Party notifies to the Indemnitee Indemnified Party of its election to assume the defense of an Actionsuch claim or action, the Indemnifying Party is shall not be liable to the Indemnitee Indemnified Party under this Section 10 for the fees of other counsel any legal or any other expenses subsequently incurred by the Indemnitee Indemnified Party in connection with such defense, the defense thereof other than the Indemnitee's reasonable costs of investigation and cooperationinvestigation. However, In any action defended by the Indemnitee Indemnifying Party the Indemnified Party shall have the right to employ separate be represented by its own counsel and to participate at its own expense unless (1) the employment of such counsel shall have been authorized in writing by the defense of an Action Indemnifying Party or (and 2) the Indemnifying Party shall bear not have properly employed counsel reasonably satisfactory to such Indemnified Party to have charge of the reasonable fees, costs, defense of such action; in each of such cases such fees and expenses of such counsel) if: (i) the use of the counsel chosen shall be paid by the Indemnifying Party would present Party. In addition, if the named parties to any such counsel with a conflict of interest; action, suit or proceeding (iiincluding any impleaded parties) the actual or potential defendants in, or targets of, such Action shall include both the Indemnifying such Indemnified Party and the IndemniteeIndemnifying Party, and the Indemnitee reasonably concludes such Indemnified Party shall have been advised by counsel that there may be one or more legal defenses available to it that which are different from from, or additional to to, those available to the Indemnifying Party, and if such Indemnified Party (notifies the Indemnifying Party in which case 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 action, suit or proceeding on behalf of such Indemnified Party, and the Indemnitee's behalf); (iii) 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 does not employ shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel satisfactory for all such Indemnified Parties). The Indemnifying Party will not, without Indemnified Party's written consent, settle or compromise any indemnifiable claim or consent to the Indemnitee to represent entry of any judgment in respect thereof unless such settlement, compromise or consent includes an unconditional release of the Indemnitee within a reasonable time after the Indemnitee's notice Indemnified Party from all liability in respect of such Action; (iv) the Indemnifying Party denies or fails to timely admit its obligation to defend and indemnify the Action; or (v) Indemnifiable Claim. The parties shall cooperate in the reasonable opinion defense of counsel all third party claims which may give rise to the Indemnitee, the claim could result in the Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a materially adverse effect on the ongoing business of the IndemniteeIndemnifiable Claims hereunder.

Defense. Upon receipt In the event any person or entity not a party to this Agreement shall make a demand or claim, file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential loss, damage or expense comes to the attention of any party in respect of matters embraced by the indemnity under this Agreement, then the party receiving notice under Subsection or aware of such event shall promptly notify the other party or parties of the demand, claim or lawsuit. Within ten days after notice by the Indemnified Party (athe "Notice") from to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the Indemniteenext sentence, the Indemnifying Party will shall have the duty option, at its sole cost and expense, to either retain counsel for the Indemnified Party, to compromise defend any such demand, claim or defendlawsuit, provided that counsel who shall conduct the defense of such demand, claim or lawsuit shall be approved by the Indemnified Party whose approval shall not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense and by counsel (reasonably satisfactory to Indemnitee)expense, such Action. The Indemnifying Party will promptly (and in any event not more than [**] after receipt of the Indemnitee's original notice) notify the Indemnitee in writing of its intention to either compromise or defend such Action. Once the Indemnifying Party notifies the Indemnitee of its election to assume the defense of an Action, the Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee's reasonable costs of investigation and cooperation. However, the Indemnitee shall have the right to employ separate counsel and to participate in the defense of an Action any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses of such counsel) if: (ia) the use of the counsel chosen by the Indemnifying Party would present named parties to any such counsel with a conflict of interest; proceeding (iiincluding any impleaded parties) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the IndemniteeIndemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (other than differing interests associated with an Indemnifying Party's obligation to indemnify), and or (b) the Indemnitee reasonably concludes that there may be legal defenses available to it that are different from employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or additional to those available to (c) the Indemnifying Party (has not in which case the Indemnifying Party shall not have the right fact employed counsel to assume the defense of such Action action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the Indemnitee's behalf); defense of any such demand, claim or lawsuit, shall consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party; provided, however, that if a firm written offer is made by the third party to settle any claim, which involves only the payment of cash (iiiUnited States dollars) and the claimant provides to the Indemnified Party a general release in a form reasonably acceptable to the Indemnified Party from all liability, and the Indemnifying Party proposes to accept (and pay in full the amount of ) such settlement but the Indemnified Party refuses to consent to such settlement, then: (i) the Indemnifying Party does shall be excused from, and the Indemnified Party shall be solely responsible for, all further defense costs related to such third-party claim; (ii) the maximum reimbursement amount relating to such third-party claim shall be the amount of the proposed settlement (plus any defense costs not employ counsel satisfactory to the Indemnitee to represent the Indemnitee within a reasonable time after the Indemnitee's notice of such Action; (iv) paid by the Indemnifying Party denies or fails to timely admit its obligation to defend and indemnify the Action; or (v) in the reasonable opinion of counsel prior to the Indemnitee, the claim could result in the Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a materially adverse effect on the ongoing business rejection of the Indemnitee.settlement) if the amount thereafter recovered from the Indemnified Party on such claim is greater that the amount of the proposed settlement; and;

Defense. Upon receipt (i) In the case of notice under Subsection (a) from the Indemniteea third party claim, the Indemnifying Party will have may participate in the duty defense thereof and, if it so chooses and irrevocably acknowledges its obligation to either indemnify the Indemnified Party therefor, control the defense of an Indemnifiable Claim with counsel reasonably satisfactory to compromise the Indemnified Party; provided, however, that if the Indemnified Party reasonably believes that (x) a material conflict of interest between the Indemnified Party and the Indemnifying Party with respect to the claim or defendits defense exists or is likely to develop during the pendency of the litigation, and as a result of such conflict, the Indemnifying Party's incentive to defend such claim could reasonably be expected to be materially compromised, or (y) the claim raises serious issues regarding the integrity or moral character of the Indemnified Party or any of its Affiliates, or of its of their senior management, in its or their capacity as such (which issues are a fundamental element of the claim) then the Indemnified Party shall be entitled to control the defense of the claim in accordance with paragraph (b)(ii) of this Section 9.3, it being understood that the mere allegation of fraud, willful misconduct, bad faith, malfeasance or any similar such claim as part of multiple claims constituting an Indemnifiable Claim, shall not be deemed, in and of itself, to provide the basis for the Indemnified Party's rights as set forth in this clause (y). In all cases, the party without the right to control the defense of the Indemnifiable Claim may participate in the defense at its own expense expense. In the case of a third party claim, the Indemnifying Party shall inform the Indemnified Party within 20 days of receiving the written notice seeking indemnification whether the party elects to control the defense and by counsel (reasonably satisfactory irrevocably acknowledges its obligation to Indemnitee), such Actionindemnify the Indemnified Party therefor. The Indemnifying Party will promptly (shall be liable for the reasonable fees and in expenses of counsel employed by the Indemnified Party for any event not more than [**] after receipt of the Indemnitee's original notice) notify the Indemnitee in writing of its intention to either compromise or defend such Action. Once period during which the Indemnifying Party notifies the Indemnitee of its election to assume has not assumed the defense thereof, provided that it either irrevocably acknowledges in writing its indemnity obligations with respect to the Indemnity Claim or it is determined by a court of an Action, competent jurisdiction that it is obligated hereunder to provide such indemnification. If the Indemnifying Party is disputes its liability with respect to a potential Indemnifiable Claim or the amount thereof (whether or not liable it desires to defend the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee's reasonable costs of investigation and cooperation. HoweverIndemnified Party against a third party claim), the Indemnitee parties shall have the right endeavor in good faith to employ separate counsel and to participate in the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses of settle such counsel) if: (i) the use of the counsel chosen by the Indemnifying Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the Indemnitee, and the Indemnitee reasonably concludes that there may be legal defenses available to it that are different from or additional to those available to the Indemnifying Party (in which case the dispute. The Indemnifying Party shall not have settle or compromise a third party claim or legal proceeding without the right prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, delayed or conditioned; provided that such prior written consent shall not be required with respect to assume any Indemnifiable Claim that relates to any item referred to in Sections 9.1(c), (d), (e), (f), (g), (h), or (i), except with respect to any Indemnifiable Claim relating to Remediation of Hazardous Substances that is covered by Section 5.18 shall remain subject in all respects to the defense terms of such Action on Section 5.18. The Indemnified Party shall not settle or compromise a third party claim for which it is entitled to indemnification hereunder without the Indemnitee's behalf); (iii) prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not employ counsel satisfactory to assume the Indemnitee to represent the Indemnitee defense of any third party claim or litigation resulting therefrom within a reasonable time 20 days after the Indemnitee's date it receives notice of such Action;claim from the Indemnified Party, the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including settling such claim or litigation, after giving notice to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate. Notwithstanding anything in this Section 9.3 to the contrary, if for any reason (for example the effect of the limitations set forth in Sections 9.4 or 9.5 or evidence that an Indemnifiable Loss may be attributable to events before or after Closing) there is any uncertainty whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or Purchaser, the parties will (A) cooperate in good faith to determine whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or Purchaser, (B) until such uncertainty is resolved to the mutual satisfaction of the parties, jointly determine who will control the defense and settlement of any such Indemnifiable Claim and how such defense and settlement will be handled, (C) cooperate with each other in the defense and settlement of such Indemnifiable Claim and the exchange of information relevant thereto, (D) unless otherwise agreed, share the out-of-pocket costs of such defense and settlement (including the costs of investigation, response and mitigation) equally until the parties' respective rights to indemnification for such costs are resolved, and (E) treat the defense and settlement of such Indemnifiable Claim as a joint and common defense, including any joint defense agreement which may be entered into by the parties. (ivii) In the case of claims described in the proviso to the first sentence of Section 9.3(b)(i), the Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such claim, at the expense of the Indemnifying Party, but the Indemnifying Party denies will not be bound by any compromise or fails settlement effected without its consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnified Party shall conduct the defense in good faith and in a commercially reasonable manner, and shall inform the Indemnifying Party periodically, or upon the Indemnifying Party's reasonable request, of the status of the litigation. The Indemnified Party's choice of counsel shall be subject to timely admit its obligation the consent of the Indemnifying Party, such consent not to defend and indemnify the Action; or (v) be unreasonably withheld or delayed. The Indemnifying Party may participate in the reasonable opinion defense thereof, at its own expense. If, in order to preserve existing insurance for a claim against IPC currently maintained by Dynegy, it is necessary to permit Dynegy's insurer to conduct the defense of counsel IPC, Purchaser will consider in good faith waiving or sharing its right to control such defense so that Dynegy's insurance rights are not lost, subject to the Indemnitee, condition that the insurer accepts the tender of the claim could result without reservation of rights. Notwithstanding anything to the contrary in this Section 9.3(b), any Indemnifiable Claim relating to Hazardous Substances that is covered by Section 5.18 shall remain subject in all respect to the Indemnitee becoming subject to injunctive relief or relief other than the payment terms of Damages that could have a materially adverse effect on the ongoing business of the IndemniteeSection 5.18.

Defense. Upon receipt If any of notice 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 Subsection which or the costs or expenses of which any of the indemnified parties is entitled to be indemnified pursuant to Section 10 (a) from the Indemniteeany such third party action or proceeding being referred to as an "Indemnification Claim"), the Indemnifying Party will have indemnified party or parties shall give prompt notice thereof to the duty indemnifying party; provided -------- that the failure to either give such notice shall not affect the indemnified party or parties' ability to compromise seek indemnification hereunder unless such failure has materially and adversely affected the indemnifying party or defendparties' ability to prosecute successfully an Indemnification Claim. Each indemnified party shall permit the indemnifying party, at its own expense and by counsel (reasonably satisfactory to Indemnitee)expense, such Action. The Indemnifying Party will promptly (and in any event not more than [**] after receipt of the Indemnitee's original notice) notify the Indemnitee in writing of its intention to either compromise or defend such Action. Once the Indemnifying Party notifies the Indemnitee of its election to assume the defense of an Actionany such claim or any litigation to which this Section 10(d) may be applicable, by counsel reasonably satisfactory to the indemnified party or parties; provided, -------- that the indemnified party or parties shall be entitled at any time, at its or their own cost and expense (which expense shall not be recoverable from the indemnifying party unless the indemnifying party is not adequately representing or, because of a conflict of interest, may not adequately represent, the Indemnifying Party is not liable indemnified party or parties' interests), to participate in such claim, action or proceeding and to be represented by attorneys of its or their own choosing. If the Indemnitee for the fees of other counsel indemnified party or any other expenses subsequently incurred by the Indemnitee parties elects to participate in connection with such defense, other than such party or parties will cooperate with the Indemnitee's reasonable costs indemnifying party in the conduct of investigation and cooperationsuch defense. HoweverThe indemnified party or parties may not concede, settle or compromise any Indemnification Claim without the Indemnitee shall have consent of the right to employ separate counsel and to participate indemnifying party. The indemnifying party, in the defense of any such claim or litigation, shall not, except with the approval of each indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an Action (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 Indemnifying Party Indemnification Claim arises under Section 10(b)(iii), the indemnifying party shall bear defend the reasonable fees, costs, and expenses of such counsel) if: (i) third party claim in the use name of the counsel chosen by the Indemnifying Party would present indemnifying party and pay any amounts to be indemnified under such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the Indemnitee, and the Indemnitee reasonably concludes that there may be legal defenses available to it that are different from or additional to those available section directly to the Indemnifying Party (in which case the Indemnifying Party shall not have the right to assume the defense of such Action on the Indemnitee's behalf); (iii) the Indemnifying Party does not employ counsel satisfactory to the Indemnitee to represent the Indemnitee within a reasonable time after the Indemnitee's notice of such Action; (iv) the Indemnifying Party denies or fails to timely admit its obligation to defend and indemnify the Action; or (v) in the reasonable opinion of counsel to the Indemnitee, the claim could result in the Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a materially adverse effect on the ongoing business of the Indemniteeclaiming party.

Defense. Upon receipt In the case of notice under Subsection (a) from the Indemniteea third party claim, the Indemnifying Party will may, at its option, control the defense of an Indemnifiable Claim at such Indemnifying Party’s expense with counsel reasonably satisfactory to the Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the duty right to either to compromise or defend, retain counsel of its choice at its own expense and by counsel (reasonably satisfactory to Indemnitee), such Action. The Indemnifying Party will promptly (and in any event not more than [**] after receipt of the Indemnitee's original notice) notify the Indemnitee in writing of its intention to either compromise or defend such Action. Once the Indemnifying Party notifies the Indemnitee of its election to assume the defense of an Action, the Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee's reasonable costs of investigation and cooperation. However, the Indemnitee shall have the right to employ separate counsel and to participate in the defense of an Action (and the Indemnifiable Claim; provided, however, that the Indemnifying Party shall bear pay the reasonable fees, costs, fees and expenses disbursements of such counsel) if: separate counsel if (i1) the use employment of the such separate counsel chosen has been specifically authorized in writing by the Indemnifying Party would present such counsel with a conflict of interest; Party; or (ii2) the actual named parties to the proceeding in which such claim, demand, action or potential defendants in, or targets of, such Action cause of action has been asserted include both the Indemnifying Party and such Indemnified Party and, in the Indemniteereasonable judgment of counsel to such Indemnified Party, and the Indemnitee reasonably concludes there exists one or more good faith defenses that there may be legal defenses available to it the Indemnified Party that are different from or additional to in conflict with those available to the Indemnifying Party (in which case or that the Indemnifying Party and Indemnified Party have actual material conflicting interests with respect to such claim, demand, action or course of action. Notwithstanding the foregoing, the Indemnifying Party shall not have be liable for the right to assume fees and disbursements of more than one counsel for all Indemnified Parties in connection with any one proceeding or any similar or related proceedings arising from the defense of such Action on the Indemnitee's behalf); (iii) same general allegations or circumstances. If the Indemnifying Party does not employ counsel satisfactory to the Indemnitee to represent the Indemnitee within a reasonable time after the Indemnitee's notice of assume such Action; (iv) defense or the Indemnifying Party denies or fails notifies the Indemnified Party within thirty days that it will not assume such defense, the Indemnified Party may control the defense of such claim and may settle the claim on behalf of and for the account and risk of the Indemnifying Party, who shall be bound by the result. In all cases, the party without the right to timely admit its obligation to defend and indemnify control the Action; or (v) defense of the Indemnifiable Claim may participate in the reasonable opinion of counsel defense at its own expense, subject to the Indemnitee, the claim could result in the Indemnitee becoming subject to injunctive relief or relief other than the payment second sentence of Damages that could have a materially adverse effect on the ongoing business of the Indemniteethis paragraph.

Defense. Upon receipt In the event any Person not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of Buyer or Seller in respect of matters covered by the indemnity under this Agreement, then the party receiving notice under Subsection or becoming aware of such event shall promptly notify the other party of the demand, claim or lawsuit. Within ten days after notice by the Indemnified Party (athe "Notice") to the Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit must be approved by the Indemnified Party, whose approval will not be unreasonably withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnified Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnifying Party. If any Indemnified Party is advised by its chosen counsel that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the IndemniteeIndemnifying Party, at the election of the Indemnified Party, the Indemnifying Party will have the duty right to either continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party under this subparagraph (b) to compromise or defend, at its own expense and by counsel (reasonably satisfactory to Indemnitee), such Actionundertake the defense. The In the event that the Indemnifying Party will promptly (and in any event not more than [**] shall fail to respond within ten days after receipt of the Indemnitee's original notice) notify Notice, the Indemnitee in writing of its intention to either compromise or defend such Action. Once the Indemnifying Indemnified Party notifies the Indemnitee of its election to assume may retain counsel and conduct the defense of an Actionsuch demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defenseParty, other than the Indemnitee's reasonable which costs of investigation and cooperation. However, the Indemnitee shall have the right to employ separate counsel and to participate in the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses of such counsel) if: (i) the use of the counsel chosen shall be paid by the Indemnifying Party would present on a current basis. Failure to provide Notice shall not limit the rights of such counsel with a conflict of interest; (ii) party to indemnification, except to the actual or potential defendants in, or targets of, such Action include both extent the Indemnifying Party and the Indemnitee, and the Indemnitee reasonably concludes that there may be legal defenses available to it that are different from or additional to those available to the Indemnifying Party (in which case the Indemnifying Party shall not have the right to assume the Party's defense of the action is actually prejudiced by such Action on the Indemnitee's behalf); (iii) the Indemnifying Party does not employ counsel satisfactory to the Indemnitee to represent the Indemnitee within a reasonable time after the Indemnitee's notice of such Action; (iv) the Indemnifying Party denies or fails to timely admit its obligation to defend and indemnify the Action; or (v) in the reasonable opinion of counsel to the Indemnitee, the claim could result in the Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a materially adverse effect on the ongoing business of the Indemniteefailure.

Defense. Upon receipt (i) In the case of notice under Subsection (a) from the Indemniteea third party claim, the Indemnifying Party will have may participate in the duty defense thereof and, if it so chooses and irrevocably acknowledges its obligation to either indemnify the Indemnified Party therefor, control the defense of an Indemnifiable Claim with counsel reasonably satisfactory to compromise the Indemnified Party; provided, how- ever, that if the Indemnified Party reasonably believes that (x) a material conflict of interest between the Indemnified Party and the Indemnifying Party with respect to the claim or defendits defense exists or is likely to develop during the pendency of the litiga- tion, and as a result of such conflict, the Indemnifying Party’s incentive to defend such claim could reasonably be expected to be materially compromised, or (y) the claim raises serious issues regarding the integrity or moral character of the Indemni- fied Party or any of its Affiliates, or of its of their senior management, in its or their capacity as such (which issues are a fundamental element of the claim) then the In- demnified Party shall be entitled to control the defense of the claim in accordance with paragraph (b)(ii) of this Section 9.3, it being understood that the mere allegation of fraud, willful misconduct, bad faith, malfeasance or any similar such claim as part of multiple claims constituting an Indemnifiable Claim, shall not be deemed, in and of itself, to provide the basis for the Indemnified Party’s rights as set forth in this clause (y). In all cases, the party without the right to control the defense of the In- demnifiable Claim may participate in the defense at its own expense expense. In the case of a third party claim, the Indemnifying Party shall inform the Indemnified Party within 20 days of receiving the written notice seeking indemnification whether the party elects to control the defense and by counsel (reasonably satisfactory irrevocably acknowledges its obligation to Indemnitee), such Actionindem- nify the Indemnified Party therefor. The Indemnifying Party will promptly (shall be liable for the reasonable fees and in expenses of counsel employed by the Indemnified Party for any event not more than [**] after receipt of the Indemnitee's original notice) notify the Indemnitee in writing of its intention to either compromise or defend such Action. Once period during which the Indemnifying Party notifies the Indemnitee of its election to assume has not assumed the defense thereof, provided that it either irrevocably acknowledges in writing its indemnity obligations with respect to the Indemnity Claim or it is determined by a court of an Actioncompetent juris- diction that it is obligated hereunder to provide such indemnification. If the Indemni- fying Party disputes its liability with respect to a potential Indemnifiable Claim or the amount thereof (whether or not it desires to defend the Indemnified Party against a third party claim), the Indemnifying Party is not liable parties shall endeavor in good faith to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with settle such defense, other than the Indemnitee's reasonable costs of investigation and cooperationdispute. However, the Indemnitee shall have the right to employ separate counsel and to participate in the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses of such counsel) if: (i) the use of the counsel chosen by the Indemnifying Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the Indemnitee, and the Indemnitee reasonably concludes that there may be legal defenses available to it that are different from or additional to those available to the Indemnifying Party (in which case the The Indemnifying Party shall not have settle or compromise a third party claim or legal pro- ceeding without the right prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, delayed or conditioned; provided that such prior written consent shall not be required with respect to assume any Indemnifiable Claim that relates to any item referred to in Sections 9.1(c), (d), (e), (f), (g), (h), or (i), except with respect to any Indemnifiable Claim relating to Remediation of Hazardous Sub- stances that is covered by Section 5.18 shall remain subject in all respects to the defense terms of such Action on Section 5.18. The Indemnified Party shall not settle or compromise a third party claim for which it is entitled to indemnification hereunder without the Indemnitee's behalf); (iii) prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not employ counsel satisfactory to assume the Indemnitee to represent the Indemnitee de- fense of any third party claim or litigation resulting therefrom within a reasonable time 20 days after the Indemnitee's date it receives notice of such Action;claim from the Indemnified Party, the Indemnified Party may defend against such claim or litigation in such manner as it may deem ap- propriate, including settling such claim or litigation, after giving notice to the Indem- nifying Party, on such terms as the Indemnified Party may deem appropriate. Not- withstanding anything in this Section 9.3 to the contrary, if for any reason (for example the effect of the limitations set forth in Sections 9.4 or 9.5 or evidence that an Indemnifiable Loss may be attributable to events before or after Closing) there is any uncertainty whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or Purchaser, the parties will (A) cooperate in good faith to determine whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or Purchaser, (B) until such uncertainty is resolved to the mutual satisfaction of the par- ties, jointly determine who will control the defense and settlement of any such In- demnifiable Claim and how such defense and settlement will be handled, (C) ▇▇▇▇▇▇- ate with each other in the defense and settlement of such Indemnifiable Claim and the exchange of information relevant thereto, (D) unless otherwise agreed, share the out- of-pocket costs of such defense and settlement (including the costs of investigation, response and mitigation) equally until the parties’ respective rights to indemnification for such costs are resolved, and (E) treat the defense and settlement of such Indemni- fiable Claim as a joint and common defense, including any joint defense agreement which may be entered into by the parties. (ivii) In the case of claims described in the proviso to the first sentence of Section 9.3(b)(i), the Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such claim, at the expense of the In- demnifying Party, but the Indemnifying Party denies will not be bound by any compromise or fails settlement effected without its consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnified Party shall conduct the defense in good faith and in a commercially reasonable manner, and shall inform the Indem- nifying Party periodically, or upon the Indemnifying Party’s reasonable request, of the status of the litigation. The Indemnified Party’s choice of counsel shall be subject to timely admit its obligation the consent of the Indemnifying Party, such consent not to defend and indemnify the Action; or (v) be unreasonably with- held or delayed. The Indemnifying Party may participate in the reasonable opinion defense thereof, at its own expense. If, in order to preserve existing insurance for a claim against IPC cur- rently maintained by Dynegy, it is necessary to permit Dynegy’s insurer to conduct the defense of counsel IPC, Purchaser will consider in good faith waiving or sharing its right to control such defense so that Dynegy’s insurance rights are not lost, subject to the Indemnitee, condition that the insurer accepts the tender of the claim could result without reservation of rights. Notwithstanding anything to the contrary in this Section 9.3(b), any Indemnifiable Claim relating to Hazardous Substances that is covered by Section 5.18 shall remain subject in all respect to the Indemnitee becoming subject to injunctive relief or relief other than the payment terms of Damages that could have a materially adverse effect on the ongoing business of the IndemniteeSection 5.18.

Defense. Upon receipt of notice under Subsection (aSection 13.2(a) from the Indemnitee, the Indemnifying Party will have the duty to either to compromise or defend, at its own expense and by counsel (reasonably satisfactory to Indemnitee), such Action. The Indemnifying Party will promptly (and in any event not more than [**] after receipt of the Indemnitee's original notice) notify the Indemnitee in writing of its intention to either compromise or defend such Action. Once the Indemnifying Party notifies the Indemnitee of its election to assume the defense of an Action, the Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee's reasonable costs of investigation and cooperation. However, the Indemnitee shall have the right to employ separate counsel and to participate in the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses of such counsel) if: (i) the use of the counsel chosen by the Indemnifying Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the Indemnitee, and the Indemnitee reasonably concludes that there may be legal defenses available to it that are different from or additional to those available to the Indemnifying Party (in which case the Indemnifying Party shall not have the right to assume the defense of such Action on the Indemnitee's behalf); (iii) the Indemnifying Party does not employ counsel satisfactory to the Indemnitee to represent the Indemnitee within a reasonable time after the Indemnitee's notice of such Action; (iv) the Indemnifying Party denies or fails to timely admit its obligation to defend and indemnify the Action; or (v) in the reasonable opinion of counsel to the Indemnitee, the claim could result in the Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a materially adverse effect on the ongoing business of the Indemnitee.