Common use of Third Party Claims Clause in Contracts

Third Party Claims. If a third party commences any action or makes any demand against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing of such action or demand; provided, however, that if the Indemnified Party assumes the defense of the action and fails to provide prompt notice to the Indemnifying Party, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Party.

Third Party Claims. If a third party commences any action or makes any demand against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(a)a) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing of such action or demand; provided, however, that if the Indemnified Party assumes the defense of the action and fails to provide prompt notice to the Indemnifying Party, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense and without limiting its obligation shall be entitled to indemnify the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory any Claim asserted by any Third Party (“Third Party Claim”) and, subject to the Indemnified Partylimitations set forth in this Section 10.04, or the Indemnifying Party may, at its own expense shall be entitled to control and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with appoint lead counsel (reasonably acceptable to the Indemnified Party. In any event) for such defense; provided that prior to assuming control of such defense, the Indemnifying Party must acknowledge that has assumed it would have an indemnification obligation for any Losses resulting from such Third Party Claim as provided under this Article 10; and provided, further that the Indemnifying Party shall not be entitled to assume or maintain control of the defense of such action any Third Party Claim and shall provide pay the other fees and expenses of counsel retained by the Indemnified Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent if (i) the Third Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (ii) the case of Indemnified Party reasonably believes an adverse determination with respect to the Third Party Claim would be detrimental to the Indemnified Party’s reputation or future business prospects, (iii) the Third Party Claim seeks an injunction or equitable relief against the Indemnified Party, (iv) the Indemnifying Party will not be unreasonably withheld has failed or is failing to prosecute or defend vigorously the Third Party Claim, (v) the Third Party Claim relates to Taxes or (iii) the specified damages of such Third Party Claim exceeds an amount equal to the General Escrow Fund (if the Indemnified Party is a Parent Indemnified Party), on the one hand, or the General Escrow Amount less the aggregate amount paid by Parent for indemnifiable losses pursuant to Section 10.02(b) (if the Indemnified Party is an Equityholder Indemnified Party), on the other, in either case less the sum of (A) the amount subject to any other Claims outstanding plus (B) the reasonably anticipated expenses for litigation of such Claim. The Indemnifying Party shall conduct any such defense in good faith, with appropriate diligence and in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case best interest of the Indemnified Party will Party. All expenses required to be paid by the Equityholder Representative described in this Article 10 may be paid by resort to the General Escrow Fund; provided that Parent has provided its written consent regarding all such expenses (which consent shall not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Party).

Third Party Claims. (i) If Parent receives notice of the assertion of any Claim or the commencement of any action by a third party commences or Governmental Entity with respect to a matter subject to indemnity hereunder (a “Third Party Claim”), notice thereof (a “Third Party Notice”) shall promptly be given to the applicable Indemnifying Party and the Escrow Agent, which Third Party Notice shall specify in reasonable detail the basis for any action anticipated liability and specify in reasonable detail, to the extent known and reasonably quantifiable at such time, the amount or makes any demand against estimated amount of the Third-Party Claim, which statement shall not be binding and may be revised, amended or modified upon notice to the Indemnifying Party. The failure of Parent to give timely notice of a Seller Third Party Claim hereunder shall not affect such Indemnified Party’s rights to indemnification hereunder, except to the extent such delay or failure has a Buyer Indemnified material prejudicial effect on the defenses or other rights available to the applicable Indemnifying Party. After receipt of a Third Party Notice, the Indemnifying Parties shall have the right, but not the obligation, by providing written notice to Parent within forty-five (45) days of delivery of the Third Party Notice, to conduct and control through reputable counsel of its own choice (subject to the approval of Parent, such approval not to be unreasonably withheld, conditioned or delayed) the defense, compromise or settlement (subject to the requirements set forth in Section 8.4(b)(ii) below) of any Third Party Claim, at the Indemnifying Party’s sole cost and expense to the extent the Indemnifying Party is obligated to indemnify Parent or is otherwise liable to pay for such fees and expenses pursuant to Section 8.2(a) or Section 8.2(b), as applicable; provided, that the Indemnifying Party must conduct the defense of the Third Party Claim actively and diligently in order to preserve its rights in this regard; and provided, further, that the Indemnifying Party shall not be entitled to conduct and control the defense thereof if such Third Party Claim, based on the remedy sought, (i) would reasonably be expected to result in an equitable order, judgment or term that would restrict the future activity of, or result in a SFI material and adverse impact on, the ongoing business of the Indemnifying Party/Indemnified Party (as defined below applicable) or any of their Affiliates, (ii) seeks equitable relief or (iii) relates to a criminal action or involves claims by a Governmental Entity. The Indemnified Party may participate, through counsel chosen by it and at its own expense, in Section 11(a)the defense of any Third Party Claim as to which the Indemnifying Party has elected to conduct and control the defense, compromise or settlement thereof; provided, that, if Parent reasonably determines that the interests of Indemnifying Party and Parent are in material conflict with one another such that the Indemnifying Party could not adequately represent the interests of Parent, then the Indemnifying Party shall also pay the reasonable and documented fees and expenses of one separate counsel of Parent in connection with such Third Party Claim during such time as such a conflict exists. In the event, however, that the Indemnifying Party declines or does not timely elect to conduct and control the defense, compromise or settlement of any Third Party Claim or to employ reputable counsel reasonably satisfactory to Parent, in either case within such forty-five (45) for which such party (“Indemnified Party”) day period, or if the Indemnifying Party is not entitled to indemnification under this Agreement, such Indemnified Party will promptly notify assume the other party (“Indemnifying Party”) in writing defense of such action claim in accordance with this Section 8.4(b), then the Indemnifying Party shall pay the reasonable and documented expenses of counsel for Parent as incurred to the extent the Indemnifying Party is obligated to indemnify Parent for such fees and expenses pursuant to Section 9.2(a) or demandSection 9.2(b), as applicable; provided, however, that if the Indemnified Party assumes the defense of the action and fails to provide prompt notice to the Indemnifying Party, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld required to pay the fees and disbursements of more than one firm for all Indemnified Parties in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Party.any claim. 93

Third Party Claims. If a third party commences any action or makes any demand against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(a)a) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing of such action or demand; provided, however, that if the Indemnified Party assumes the defense of the action and fails to provide prompt notice to the Indemnifying Party, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense and without limiting its obligation shall be entitled to indemnify the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory any Claim asserted by any Third Party (“Third Party Claim”) and, subject to the Indemnified Partylimitations set forth in this Section 9.05, or the Indemnifying Party may, at its own expense shall be entitled to control and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with appoint lead counsel (reasonably acceptable to the Indemnified Party. In any event) for such defense; provided that, prior to assuming control of such defense, the Indemnifying Party must acknowledge that has assumed it would have an indemnification obligation for any Losses resulting from such Third Party Claim as provided under this Article 9; and provided, further that the Indemnifying Party shall not be entitled to assume or maintain control of the defense of such action any Third Party Claim and shall provide pay the other fees and expenses of counsel retained by the Indemnified Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent if (i) the Third Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (ii) the case of Indemnified Party reasonably believes an adverse determination with respect to the Third Party Claim would be detrimental to the Indemnified Party’s reputation or future business prospects, (iii) the Third Party Claim seeks an injunction or equitable relief against the Indemnified Party, (iv) the Indemnifying Party will not be unreasonably withheld has failed or is failing to prosecute or defend vigorously the Third Party Claim, as reasonably determined by the Indemnified Parties or (v) the specified damages of such Third Party Claim exceeds an amount equal to the unexhausted portion of the Indemnity Holdback less the sum of (A) the amount subject to any other Claims outstanding plus (B) the reasonably anticipated expenses for litigation of such Claim. The Indemnifying Party shall conduct any such defense in good faith, with appropriate diligence and in the event best interest of the settlement or adjustment involves only the payment of money damages Indemnified Party. All expenses required to be paid by the Indemnifying Party and described in this Article 9 may be paid from the Indemnity Holdback; provided that Parent has provided its written consent regarding all such expenses (ii) in the case of the Indemnified Party will which consent shall not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Party).

Third Party Claims. If any Claims Notice identifies a Liability Claim brought by a third party commences any action or makes any demand against (a Seller “Third Party Claim” and together with the Liability Claims, the “Claims”), then the Indemnifying Party has the right, exercisable by written notice to the Indemnified Party within 10 days after receipt of such Claims Notice, to assume and conduct the defense of such Third Party Claim in accordance with the limits set forth in this Agreement with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing of such action or demand; provided, however, that if (i) the defense of such Third Party Claim by the Indemnifying Party will not, in the reasonable judgment of the Indemnified Party, have a material adverse effect on the Indemnified Party; (ii) the Indemnifying Party has sufficient financial resources, in the reasonable judgment of the Indemnified Party, to satisfy the amount of any adverse monetary judgment that is reasonably likely to result; (iii) the Third Party Claim solely seeks (and continues to seek) monetary damages; and (iv) the Indemnifying Party expressly agrees in writing that as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party may only satisfy and discharge the Third Party Claim in accordance with the limits set forth in this Agreement (the conditions set forth in clauses (i) through (iv) are, collectively, the “Litigation Conditions”). If the Indemnifying Party does not assume the defense of a Third Party Claim in accordance with this Section 10.2(b), the Indemnified Party assumes may continue to defend the defense Third Party Claim. Notwithstanding the foregoing, if (i) any of the action and Litigation Conditions cease to be met or (ii) the Indemnifying Party fails to provide prompt notice take reasonable steps necessary to the Indemnifying Partydefend diligently such Third Party Claim, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent that such failure materially prejudices may assume its own defense, and the Indemnifying Party’s ability to defend the actionParty will be liable for all reasonable costs or expenses paid or incurred in connection with such defense. The Indemnifying Party mayor the Indemnified Party, as the case may be, has the right to participate in (but not control), at its own expense and without limiting its obligation to indemnify the Indemnified Partyexpense, participate in the defense of such action with counsel reasonably satisfactory to any Third Party Claim which the Indemnified other is defending as provided in this Agreement. The Indemnifying Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that if it has assumed the defense of such action shall provide the other any Third Party with copies of all noticesClaim as provided in this Agreement, pleadingsmay not, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consentconsent of the Indemnified Party, which consent to a settlement of, or the entry of any judgment arising from, any such Third Party Claim that (i) does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party a complete release from all liability in respect of such Third Party Claim, (ii) grants any injunctive or equitable relief or (iii) may reasonably be expected to have a material adverse effect on the case Indemnified Party. The Indemnified Party has the right to settle any Third Party Claim, the defense of the Indemnifying Party will which has not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages been assumed by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Party.

Third Party Claims. (a) If a any third party commences any action or makes any demand asserts a Claim (a "Third-Party Claim") against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI an Indemnified Party (as defined below in Section 11(a)) for which such party (“that could reasonably be expected to give rise to a right on the part of the Indemnified Party”) is entitled Party to indemnification under this AgreementArticle XI, such the Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing shall give written notice of such action or demandThird-Party Claim to the Indemnifying Party as promptly as reasonably practicable (but in no event later than ten (10) Business Days after receiving written notice of such Third-Party Claim) reasonably describing the Third-Party Claim; provided, however, that if the Indemnified Party assumes the defense of the action and fails failure to provide prompt notice to so notify the Indemnifying Party, such failure shall Party will not limit in any way relieve the Indemnifying Party’s obligation Party from any liability that it may have hereunder with respect to indemnify the Indemnified such Third-Party Claim, except to the extent (and only to the extent) that such failure materially prejudices to so notify the Indemnifying Party’s ability Party results in Losses to defend the actionIndemnifying Party that are greater than such Losses would have been had the Indemnified Party given the Indemnifying Party such notice hereunder. The Indemnifying Party may, at its own expense and without limiting its obligation shall have the right to indemnify the Indemnified Party, participate in the defense of such action assume (with counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with legal counsel reasonably acceptable to the Indemnified Party) at its sole cost and expense the defense of such Third-Party Claim, provided that the Indemnifying Party shall have notified the Indemnified Party in writing of its intention to do so and acknowledging the Indemnifying Party's responsibility for such Third-Party Claim and stating that all related Losses shall be indemnified hereunder without reservation of rights (but subject to the monetary limitations set forth in this Article XI); provided, further, that the Indemnifying Party shall not have the right to assume and/or control the defense of any such Third-Party Claim if (1) such Third-Party Claim involves criminal allegations, (2) such Third-Party Claim seeks injunctive or other equitable relief against the Indemnified Party, (3) a conflict of interest exists between the Indemnified Party and the Indemnifying Party with respect to the defense of such Third-Party Claim, (4) an adverse determination with respect to such Third-Party Claim would reasonably be expected to materially injure the Indemnified Party's relationship with its current business relations, (5) the Losses relating to such Third-Party Claim together with all other indemnification claims made would reasonably be expected to exceed the maximum amount that the Indemnified Party would be entitled to recover under this Article XI taking into account the limitations on indemnification herein, (6) such Third-Party Claim relates to Taxes, (7) any of Buyer's insurance carriers has assumed the defense thereunder pursuant to such applicable insurance policy or (8) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to reasonably defend such Third-Party Claim (in which case the Indemnifying Party shall thereafter pay the fees and expenses of counsel retained by the Indemnified Party). If the Indemnifying Party is not permitted to assume the defense, elects not to assume the defense or fails to assume the defense within fifteen (15) Business Days after receiving notice of such Third-Party Claim as set forth in this Section 11.4(a), then the Indemnified Party (A) shall have the right, but not the obligation, to employ counsel reasonably satisfactory to the Indemnifying Party to represent or defend it against any such Third-Party Claim, and the reasonable out of pocket attorney's fees incurred by the Indemnified Party for such counsel will be included in the Indemnified Party's Losses; provided, however, that the Indemnified Party's Losses shall not, in connection with any Legal Proceeding or separate but substantially similar Legal Proceedings arising out of the same general allegations, include the fees and expenses of more than one separate firm of attorneys at any time for all Indemnified Parties, except to the extent that local counsel, in addition to its regular counsel, is required in order to effectively defend against such Legal Proceeding, and (B) shall have the right to consent to the entry of judgment or enter into any settlement with respect to or otherwise compromise or resolve a Third-Party Claim; provided, however, that at least ten (10) days prior thereto, the Indemnified Party has provided written notice of its intention to settle, compromise or otherwise resolve such Third-Party Claim to the Indemnifying Party and the Indemnifying Party has given its prior written consent to the Indemnified Party with respect thereto (which consent shall not be unreasonably withheld, conditioned or delayed); provided, further, that the Indemnifying Party's consent will not be required if such settlement will result in an amount of Losses of the Indemnified Party(ies) with respect to such Third-Party Claim (without regard to coverage under the R&W Policy) which are not indemnifiable hereunder in excess of the amounts for which the Indemnified Party(ies) would be entitled to indemnification hereunder. If the Indemnifying Party does assume the defense of a Third-Party Claim, the Indemnified Party shall have the right to participate in (but not control) the defense of such Third-Party Claim. In any eventsuch case, the Indemnified Party that shall bear the cost of such counsel unless (x) the engagement of separate legal counsel has been specifically authorized in writing by the Indemnifying Party, (y) a conflict of interest exists or arises between the Indemnified Party and the Indemnifying Party or (z) one or more defenses are available to the Indemnified Party which are not available to the Indemnifying Party, in which case, such expenses shall be borne by the Indemnifying Party. Whether or not the Indemnified Party retains its own counsel when the Indemnifying Party has elected to control and is controlling in accordance with this Section 11.4(a), the Indemnifying Party shall reasonably cooperate in providing information to and consulting with the Indemnified Party about the Third-Party Claim. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, enter into any settlement with respect to any Third-Party Claim it has assumed the defense of unless such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case includes an unconditional release of the Indemnifying Indemnified Parties for liability arising out of such claim, (ii) does not involve any injunctive or other equitable relief binding on any Indemnified Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment any finding or admission of money damages any violation of Law or admission of any wrongdoing by the Indemnifying any Indemnified Party and (iiiii) in the case none of the Indemnified Party Parties will not be unreasonably withheld; provided that obligated to make any payments or other disbursements, or otherwise incur any financial liability, in connection with such consent may be withheld if the settlement settlement, compromise or adjustment involves performance or admission by the Indemnified Partyother resolution.

Third Party Claims. (a) If a claim by a third party commences is made against any action or makes any demand against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI and if such Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled intends to indemnification seek indemnity with respect thereto under this AgreementArticle IX (a “Third Party Claim”), such Indemnified Party will promptly notify the other party Indemnifying Party of such claims in writing; provided, that the failure to so notify will not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party will have twenty (“20) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party”) in writing , of such action the settlement or demanddefense thereof; provided, however, that if (i) the Indemnifying Party will permit the Indemnified Party assumes the to participate in such settlement or defense of the action and fails to provide prompt notice to the Indemnifying Party, through counsel chosen by such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in provided that the defense fees and expenses of such action with counsel reasonably satisfactory to the will be borne by such Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (iii) in the case of the Indemnifying Party will not be unreasonably withheld in entitled to assume control of such defense if (A) such Third Party Claim could give rise to Losses which are more than Two Hundred Fifty Thousand Dollars ($250,000) and (B) after giving effect to Losses previously paid by the event Indemnified Party under Article IX hereof, plus the settlement or adjustment involves only amount of all claims for Losses made by the payment of money damages by Indemnified Party against the Indemnifying Party and (ii) in for indemnification under this Article IX that are outstanding at the case time of such claim, the remaining maximum aggregate obligation of the Indemnifying Party to indemnify the Indemnified Party will not be unreasonably withheld; provided that under the provisions of this Article IX applicable to such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified PartyThird Party Claim is less than Two Hundred Fifty Thousand Dollars ($250,000).

Third Party Claims. If a any claim covered by this Article 7 is made by any third party, the party commences any action or makes any demand against a Seller receiving that claim (the "Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(a)") for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will shall promptly notify the other party (“Indemnifying Party”) in writing of such action or demand; provided, however, that if the Indemnified Party assumes the defense of the action and fails to provide prompt notice to the Indemnifying Party, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to (the extent that such failure materially prejudices the "Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense ") and without limiting its obligation to indemnify the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Party mayshall have an opportunity to defend or settle the claim, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, If the Indemnifying Party that has assumed assumes the defense of an Indemnified Party's claim and, under applicable standards of professional conduct, a conflict of interest exists on any significant issue between the positions of the Indemnified Party and the Indemnifying Party, such action shall provide that counsel chosen by the other Indemnifying Party is ethically prohibited from representing both the Indemnified Party and the Indemnifying Party, then the Indemnified Party may retain counsel reasonably satisfactory to the Indemnifying Party to represent the Indemnified Party with copies of all notices, pleadingsrespect to the issue as to which there is a conflict, and other papers filed or served in such action. Neither the Indemnifying Party shall make pay all fees and expenses of that counsel. If the Indemnifying Party fails to promptly assume the defense of a claim covered by this Article 7 after notice or to thereafter diligently defend against the claim or if any settlement such claim is determined valid by a court having proper jurisdiction, the Indemnified Party shall have the right to pay or adjustment without settle such claim and demand immediate payment from the other Indemnifying Party’s prior written consent. All amounts paid under this Section 0.7.3 are payable on demand or, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the a third party claim, upon settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the final judgment. The Indemnified Party will not shall also be unreasonably withheld; provided that such consent may be withheld if entitled to recover any costs or expenses incurred in enforcing the settlement or adjustment involves performance or admission by the Indemnified Partyrights to indemnity hereby granted.

Third Party Claims. If a third party commences any action or makes any demand against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI Upon providing notice to an Indemnifying Party by an Indemnified Party (as defined below in pursuant to Section 11(a)) for 6.2 of the commencement of any Third Party Claim with respect to which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify intends to claim any Loss under this Article 6, such Indemnifying Party shall have the other party (“right to defend such claim, at such Indemnifying Party”) in writing ’s expense and with counsel of such action or demand; provided, however, that if its choice reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the defense of such claim, the action and fails to provide prompt notice to Indemnified Party shall, at the request of the Indemnifying Party, use commercially reasonable efforts to cooperate in such failure shall not limit in any way defense; provided, that the Indemnifying Party shall bear the Indemnified Party’s obligation to indemnify reasonable out-of-pocket costs and expenses incurred in connection with such cooperation. So long as the Indemnifying Party is conducting the defense of such claim as provided in this Section 6.4, the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, may retain separate co-counsel at its own expense and without limiting its obligation to indemnify the Indemnified Party, may participate in the defense of such action with counsel reasonably satisfactory claim. Neither the Indemnified Party nor the Indemnifying Party shall consent to the entry of any Judgment or enter into any settlement with respect to such claim without the prior written consent of the other; provided that the consent of the Indemnified PartyParty shall not be required if such Judgment or settlement (a) provides for the payment by the Indemnifying Party of money as sole relief (if any) for the claimant (other than customary and reasonable confidentiality obligations relating to such claim, Judgment or settlement), (b) results in the full and general release of the Indemnified Party from all liabilities arising out of, relating to or in connection with such claim and (c) does not involve a finding or admission of any violation of any law, rule, regulation or Judgment, or the Indemnifying Party mayrights of any Person, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to has no effect on any other claims that may be made against the Indemnified Party. In Any party’s assumption of the defense of any eventThird Party Claim can be made with a reservation of the right to contest the right of Indemnified Party to be indemnified with respect to such claim under this Agreement, and a party’s consent to any settlement of a Third Party Claim shall not be used as evidence of the truth of the allegations in any Third Party Claim or the merits of such Third Party Claim. Furthermore, the existence of any Third Party that Claim shall not create a presumption of any breach by a party to this Agreement of any of its representations, warranties or covenants set forth in this Agreement. The Indemnifying Party shall be liable for the reasonable out-of-pocket costs and expenses of counsel employed by the Indemnified Party in the defense of a Third Party Claim (which shall all be considered a Loss for purposes of this Agreement) for any period during which the Indemnifying Party has not assumed the defense of such action shall provide thereof (other than during the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither period prior to the time the Indemnified Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of have notified the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying such Third Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified PartyClaim).

Third Party Claims. If In the event of a third party commences any action or makes any demand against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled claim giving rise to indemnification under this Agreementhereunder, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing of such action or demand; provided, however, that if the Indemnified Party assumes the defense of the action and fails to provide prompt notice to the Indemnifying Party, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense and without limiting its obligation upon prior written notice to indemnify the Indemnified Party, participate in assume the defense of such action claim with counsel reasonably satisfactory to the Indemnified Party, or and shall thereafter be liable for all expenses incurred in connection with such defense, including attorneys’ fees and expenses; provided, however, that if the Indemnifying Party mayassumes the defense of any such claim, the Indemnified Party may participate in such defense at its own expense and without limiting with counsel of its obligation choice; provided further, however, that if there are one or more legal defenses available to indemnify the Indemnified PartyParty that conflict with those available to the Indemnifying Party or there exists any other conflict of interest, the Indemnifying Party shall have the right to assume the defense of such action with claim but the Indemnified Party shall have the right to employ separate counsel reasonably acceptable at the expense of the Indemnifying Party and to participate in the defense thereof. If the Indemnifying Party elects to control the defense of such claim, it shall do so diligently and shall have the right to settle any claim for monetary damages, provided such settlement includes a complete and absolute release of the Indemnified Party and shall not admit any fault or liability on the part of the Indemnified Party. In any eventNotwithstanding anything to the contrary, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will may not be unreasonably withheld settle any claims for fines, penalties or the like or in any way adverse to the event Indemnified Party without the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case prior written consent of the Indemnified Party will Party, which shall not unreasonably be unreasonably withheld; provided that such consent may be withheld if , conditioned or delayed. [*****] Confidential portions of this document have been redacted and filed separately with the settlement or adjustment involves performance or admission by the Indemnified PartySecurities and Exchange Commission.

Third Party Claims. If a third party commences any action or makes any demand against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI (i) The Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such shall give the Indemnifying Party reasonable notice of the assertion or commencement by any Person of any Third Party Claim against the Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing of such action or demandaccordance with Section 13.3(a); provided, however, that if any failure on the part of the Indemnified Party assumes the defense of the action and fails to provide prompt notice to notify the Indemnifying Party, such failure Party shall not limit in any way of the obligations of the Indemnifying Party’s obligation to indemnify the Indemnified Party under this Agreement except to the extent that such failure actually and materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in the defense of such action Third Party Claim. In the event of the assertion or commencement by any Person of any Third Party Claim against an Indemnified Party with respect to which the Indemnifying Party is, or could be determined to be, obligated to indemnify and hold harmless the Indemnified Party pursuant to this Agreement, the Indemnifying Party shall be entitled to assume the defense of any Third Party Claim with counsel reasonably satisfactory to the Indemnified Party, or at the Indemnifying Party’s sole expense; provided that the Indemnifying Party mayshall not be entitled to assume or continue control of the defense of any Third Party Claim if (A) the Third Party Claim relates to or arises in connection with any criminal Legal Proceeding or any Legal Proceeding by a Governmental Body, at its own expense and without limiting its obligation to indemnify (B) the Third Party Claim seeks an injunction or equitable relief against any Indemnified Party, (C) the Third Party Claim has or would reasonably be expected to result in Losses in excess of the Available Escrow Shares, (D) the Indemnified Party reasonably believes (based on the advice of counsel) that the interests of the Indemnifying Party and the Indemnified Party with respect to such claim are in conflict with one another and, as a result, the Indemnifying Party could not adequately represent the interests of the Indemnified Party in such claim, (E) the Indemnifying Party has failed or is failing to defend in good faith the Third Party Claim, (F) the Indemnifying Party has not acknowledged in writing that such Third Party Claim is subject to, and the Indemnified Party is entitled to, indemnification pursuant to this Article XIII, or (G) the Indemnifying Party fails to give written notice that it will assume the defense of such action with counsel reasonably acceptable to Third Party Claim within thirty (30) days after receiving the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Partyindemnification claim notice pursuant to Section 13.3(a).

Third Party Claims. If In the case of any claim asserted by a third party commences any action or makes any demand against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification under this AgreementArticle 8 (the “Indemnified Party”), such notice shall be given by the Indemnified Party will promptly notify to the other party required to provide indemnification (the “Indemnifying Party”) in writing as soon as practicable after such Indemnified Party has actual knowledge of any Claim as to which indemnity may be sought, and the Indemnified Party shall permit the Indemnifying Party (at the expense of such action Indemnifying Party) to assume the defense of any third party claim or demandany litigation with a third party resulting therefrom; provided, however, that if (i) the Indemnified Party assumes may participate in such defense at such Indemnified Party’s expense, and (ii) the defense of the action and fails failure by any Indemnified Party to provide prompt give notice to as provided in this Section 8.5(a) shall not relieve the Indemnifying Party, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party of its indemnification obligations under this Section 8.5(a) except to the extent that such Indemnifying Party is materially prejudiced by such failure materially prejudices to give notice. Notwithstanding anything to the contrary contained herein, in no event may the Indemnifying Party’s ability to defend Party assume or maintain control of the action. The defense of any Claim (A) unless the Indemnifying Party may, at acknowledges fully its own expense and without limiting its obligation obligations to indemnify the Indemnified Party, participate Party for the Losses incurred in the defense connection with such third party claim within thirty (30) calendar days after receiving notice of such action third party Claim; (B) whereby the applicable third party claimant is a then-current customer, employee, or material supplier of the Buyer or the Company or any of their respective Affiliates; (C) whereby the applicable third party alleges Fraud; (D) whereby an adverse judgment with counsel reasonably satisfactory respect to the Claim will establish a precedent materially adverse to the continuing business interests of the Company, the Buyer or their respective Affiliates; (E) for which there is a material conflict of interest between the Indemnified Party, or Party and the Indemnifying Party mayin the conduct of such defense; (F) whereby the third party Claim is criminal in nature, at its own expense and without limiting its obligation could reasonably be expected to indemnify lead to criminal proceedings or otherwise involves criminal liability; (G) for which the third party Claim seeks injunctive relief or other equitable remedies against the Indemnified PartyPart(ies), including suspension or debarment; (H) if a Buyer Indemnitee is the Indemnified Party and seeks indemnification for amounts greater than the amounts remaining in the Indemnity Escrow Account, and/or (I) (x) whereby the assumption of the defense by the Indemnifying Party is reasonably likely to cause a Buyer Indemnitee to lose coverage under the R&W Insurance Policy, (y) a Buyer Indemnitee or the insurer is required to assume the defense of such third-party Claim pursuant to the R&W Insurance Policy or (z) the insurer of the R&W Insurance Policy and the Buyer have confirmed in writing that the applicable Losses will be fully covered other than by the Indemnifying Party. If the Indemnifying Party is not otherwise entitled to assume or control the defense of the third party Claim, if the Indemnifying Party does not accept the defense of any matter as above provided within 30 days after receipt of the notice from the Indemnified Party described above (or any shorter period required to avoid material prejudice with respect to the defense of such matter), or if the Indemnifying Party abandons or fails to diligently pursue the defense of such third party Claim, the Indemnified Party shall have the full right to defend against any such Claim at the sole cost of the Indemnifying Party, provided that the Indemnified Party shall not consent to entry of any judgment or enter into any settlement of such Claim without the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, delayed or conditioned. Except with the prior written consent of the Indemnified Party (which consent may not be unreasonably withheld, conditioned or delayed), no Indemnifying Party, in the defense of any such Claim, shall consent to entry of any judgment or enter into any settlement that (i) provides for injunctive or other nonmonetary relief affecting the Indemnified Party, (ii) that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnified Party of a general complete release from all liability with respect to such Claim, (iii) requires the taking or restriction of any action with counsel (including the payment of money and competition restrictions) by the Indemnified Party other than the delivery of a release for such Claim, or (iv) if a Buyer Indemnitee is the Indemnified Party, exceeds the amounts remaining in the Indemnity Escrow Account unless the Indemnifying Party sets aside the amount of such excess in an escrow arrangement reasonably acceptable to the indemnified party. If the Indemnified Party has been advised in writing by counsel that it may have available to it one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect of such Claim relating thereto, then the Indemnified Party shall be entitled, at the Indemnifying Party’s cost and expense, to separate counsel of its own choosing (but no more than one such separate counsel). In any event, the Indemnifying Party that has assumed and the Indemnified Party shall reasonably cooperate in the defense of such action any Claim subject to this Section 8.5(a) and the records of each shall provide be reasonably available to the other Party with copies of all noticesrespect to such defense. Notwithstanding anything to the contrary in this Section 8.5(a), pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case control of the Indemnifying Party defense of any third-party claim for which the Buyer Indemnitees will not seek recovery under the R&W Insurance Policy shall be unreasonably withheld in subject to the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Partyprovisions thereof.

Third Party Claims. If a claim by a third party commences Person is made against the Purchaser, the Company or any action or makes any demand against a Seller Indemnified Partyof its Subsidiaries ("Third Party Claim"), a Buyer Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled and if the Purchaser intends to indemnification seek compensation with respect thereto under this AgreementArticle VI, such Indemnified Party will the Purchaser shall promptly notify the other party (“Indemnifying Party”) , in writing of such action or demandThird Party Claim, setting forth such Third Party Claim in reasonable detail; provided, however, that if the Indemnified Party assumes the defense of the action and fails failure to provide prompt notice to of any such Third Party Claim shall not relieve the Indemnifying Party, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except of its indemnification obligations hereunder unless and then only to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the actionParty is materially prejudiced thereby. The Indemnifying Party mayshall have the right to conduct and control the defense of a Third Party Claim by delivering to the Purchaser, within fifteen (15) days after receipt of such notice, a written acknowledgement that such Third Party Claim is an indemnifiable claim under this Article VI, that the Indemnifying Party will undertake, conduct and control (in accordance with the terms hereof), through counsel of its own choosing (provided that such counsel must be reasonably acceptable to the Purchaser) and at its own expense, the settlement or defense thereof and that it will compensate the Purchaser from and against the entirety of the Loss the Purchaser may suffer arising out of, resulting from, or relating to such Third Party Claim; provided that the Purchaser may participate in such settlement or defense through counsel chosen by the Purchaser and paid at its own expense and provided further that, if there is a reasonable likelihood of a conflict of interest between the Indemnifying Party and the Purchaser, then the Indemnifying Party shall be responsible for fees and expenses up to US$100,000 in the aggregate of one additional counsel (plus local and special counsel, if reasonably necessary) to such Purchaser in connection with such defense. So long as the Indemnifying Party is diligently contesting any such Third Party Claim in good faith, the Purchaser shall not pay or settle any such claim without limiting the consent of the Indemnifying Party (which consent shall not be unreasonably withheld). If the Indemnifying Party does not notify the Purchaser within fifteen (15) days after receipt of the Purchaser’s notice of a Third Party Claim that it elects to undertake the defense thereof, or if such Third Party Claim does not involve only money damages and seeks an injunction, or the Indemnifying Party does not conduct the defense in good faith, then the Purchaser shall have the right to undertake the defense, compromise or settlement of the Third Party Claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement (provided that Purchaser shall not enter into any settlement of any Third Party Claim made pursuant to this Article VI without the consent of the Indemnifying Party (which consent shall not be unreasonably withheld)). If the Indemnifying Party assumes the defense in accordance with the terms of this Section 6.4, it shall keep the Purchaser apprised of the status of the Third Party Claim and any resulting suit, proceeding or enforcement action and shall furnish the Purchaser with all documents and information that the Purchaser shall reasonably request and shall consult with the Purchaser prior to acting on major matters, including settlement discussions. The Indemnifying Party shall not, except with the consent of the Purchaser, enter into any settlement of any Third Party Claim made pursuant to this Article VI without the consent of the Purchaser (which consent shall not be unreasonably withheld). Notwithstanding anything herein stated, the Purchaser shall at all times have the right to fully participate in such defense at its obligation own expense directly or through counsel. Notwithstanding anything to indemnify the Indemnified Partycontrary in this Section 6.4, should any Third Party Claim involve a situation where the Purchaser reasonably anticipates that part of the Third Party Claim will be borne by it and part of the Third Party Claim will be borne by the Indemnifying Party due to the existence of the provisions of this Article VI (e.g., the application of any limitations contained herein), the Indemnifying Party and Purchaser shall jointly consult as to any such Third Party Claim, and the Purchaser shall have the right to assume the defense thereof by representatives chosen by it (subject to the consent of the Indemnifying Party which consent shall not be unreasonably withheld) and shall be entitled to control any settlement or compromise of such Third Party Claim, provided that (i) the Indemnifying Party shall be entitled to participate in the defense of such action with Third Party Claim and to employ counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify assist in the Indemnified Party, assume the defense handling of such action with counsel reasonably acceptable Third Party Claim and (ii) any settlement of such claim remains subject to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will which consent shall not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Party).

Third Party Claims. If a third party commences (i) The Indemnified Party shall, subject to Section 9.5(c)(iv) and the rights of the R&W Insurer to assume the defense of any action such Loss or makes any demand against a Seller Indemnified legal proceeding pursuant to the R&W Insurance Policies, permit the Indemnifying Party, a Buyer Indemnified Party, or a SFI at its sole cost and expense (which expenses shall not be applied against any indemnification limitation contained herein) and upon written notice to the Indemnified Party within thirty (as defined below in Section 11(a)30) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify days after the other party (“Indemnifying Party”) in writing ’s receipt of written notice of such action Loss, to assume the defense of any such Loss or demandlegal proceeding; provided, howeverthat, that if the Indemnifying Party acknowledges in writing its responsibility to indemnify, defend and hold the Indemnified Party harmless in connection with such Loss and any obligations resulting therefrom, including any settlement or judgment related thereto. If the Indemnifying Party assumes the defense of the action and fails to provide prompt notice to the Indemnifying Partyany such Loss or legal proceeding, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with shall select counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed to conduct the defense of such action Loss or legal proceeding, shall provide the other Party with copies of all notices, pleadingsdiligently conduct such defense, and other papers filed shall take all steps reasonably necessary in the defense or served in such actionsettlement thereof. Neither The Indemnifying Party shall make not consent to a settlement of, or the entry of any settlement order arising from, any such Loss or adjustment legal proceeding, without the other Party’s prior written consent, consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed), unless the order or proposed settlement (i) involves solely the payment of money damages, (ii) is fully recoverable under the R&W Insurance Policies or pursuant to an available escrow amount hereunder, (iii) does not impose an injunction or other equitable relief upon the Indemnified Party, and (iv) provides for the express and unconditional release of the Indemnified Party from all liabilities and obligations with respect to such claim with prejudice and does not require any admission of wrongdoing, in which case no consent will be required. The Indemnified Party shall be entitled to participate in (but not control) the case defense of any such action, with its own counsel and at its sole cost and expense. An Indemnified Party shall not settle or compromise any Third Party Claim without the prior written consent of the Indemnifying Party will (such consent not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not to be unreasonably withheld, conditioned or delayed); provided that such consent may shall not be withheld if required in the event that such settlement expressly releases the Indemnifying Party from all liabilities and obligations with respect to such claim. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of the Indemnified Party to give such notice (or adjustment involves performance or admission by delay by the Indemnified PartyParty in giving such notice) unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. For all purposes hereof, all notices that relate to any Loss for which a Parent Indemnified Party may seek indemnification pursuant to this Article IX shall, to the extent that the Loss is or may be covered by the R&W Insurance Policies, also be provided to the R&W Insurer.

Third Party Claims. If a third party commences any action or makes any demand against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(a)) for which such Each party (the “Indemnified Party”) is entitled agrees to indemnification under this Agreement, such Indemnified Party will promptly notify the other party (the “Indemnifying Party”) of any Damages asserted by third parties that, in writing the opinion of such action or demand; provided, however, that if the Indemnified Party assumes the defense of the action and fails to provide prompt notice to the Indemnifying Party, such failure shall not limit in any way the Indemnifying Party’s obligation are reasonably likely to indemnify the Indemnified give rise to indemnification hereunder (“Third-Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the actionClaims”). The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, may (a) participate in the defense of any Third-Party Claim or (b) upon written notice thereof, and written acknowledgement without reservation of rights that the Indemnifying Party shall be solely responsible for such action Third Party Claim and all Damages relating thereto (notwithstanding any limitations set forth in this Section 7 that would otherwise apply with respect thereto, which shall not thereafter be applicable) to the Indemnified Party, assume the defense of any Third-Party Claim, with counsel reasonably satisfactory to the Indemnified Party; provided that the party assuming the defense may not assume such defense if there exists a conflict of interest between the positions of the Indemnified Party and such Party with respect to such Third-Party Claim or if such Third-Party Claim seeks equitable relief against the Indemnified Party. The Indemnified Party agrees that it will not settle any Third-Party Claims without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. The Indemnified Party further agrees that if the Indemnifying Party may, at its own expense and without limiting its obligation wishes to indemnify the Indemnified Party, assume the defense of such action enter into a settlement with counsel respect to a Third-Party Claim on terms reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; cooperate in such settlement, provided that such consent may be withheld if settlement includes, as an unconditional term thereof, the settlement or adjustment involves performance or admission giving by the third party to the Indemnified PartyParty and its Affiliates of a release from all liability in respect of such Third-Party Claim.

Third Party Claims. (a) If a any third party commences notifies Parent with respect to any action or makes matter that may give rise to a claim for indemnification against any demand against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification Shareholder under this AgreementArticle II (a "Third Party Claim"), such Indemnified Party will then Parent shall promptly notify the other party (“Indemnifying Party”) Representative thereof in writing (a "Notice of such action or demand; provided, however, that if Claim"). The Representative will have the Indemnified Party assumes right to assume and thereafter conduct the defense of the action Third Party Claim with counsel of the Representative's choice reasonably satisfactory to Parent so long as: (i) the Representative notifies Parent in writing within ten (10) business days after Parent has given the Notice of Claim that the Shareholders will indemnify the Parent from and fails against the entirety of any Losses Parent may suffer caused by or arising from the Third Party Claim, (ii) the Representative provides Parent with evidence reasonably acceptable to provide prompt notice Parent that the Shareholders will have the financial resources to defend against the Third Party Claim and fulfill their indemnification obligations hereunder, (iii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, (iv) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of Parent, likely to establish a precedent, custom or practice materially adverse to the Indemnifying Partycontinuing business, such failure shall not limit in any way operations, assets, prospects or interests of Parent or its subsidiaries, and (v) the Indemnifying Party’s obligation Representative conducts the defense of the Third Party Claim actively and diligently. In the event of a Third Party Claim that seeks an injunction or other equitable relief, the Representative will be entitled to indemnify the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate with Parent in the defense of such action with counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Third Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified PartyClaim.

Third Party Claims. If (a) In the event an Indemnified Party becomes aware of a third party commences any action or makes any demand against claim (a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI “Third Party Claim”) which such Indemnified Party (as defined below reasonably believes would result in Section 11(a)) a claim for which such party (“Indemnified Party”) is entitled indemnification pursuant to indemnification under this AgreementArticle VII, such Indemnified Party will shall promptly notify the other party (“Indemnifying Party”) in writing Responsible Party of such action or demandThird Party Claim (it being understood that no delay in providing such notice shall prejudice such Indemnified Party’s rights under this Article VII except to the extent that the applicable Indemnifying Party is materially prejudiced by reason of such failure). Parent shall have the right in its sole discretion to conduct the defense of, and to settle, any such Third Party Claim; provided, however, that (a) the Stockholder Representative shall be entitled on behalf of the Equityholders, at its expense and only to the extent it does not affect any privilege relating to any Equityholder Indemnified Party, to consult with Parent with respect to, but not to determine or conduct, the defense of, such Third Party Claim and (b) if the Indemnified Indemnifying Party assumes the defense of the action and fails to provide prompt notice to the is an Equityholder Indemnifying Party, except with the consent of the Stockholder Representative, no settlement or resolution of any such failure Third Party Claim shall not limit be determinative of the existence or the amount of Losses resulting from, arising out of or relating to such Third Party Claim. The Indemnified Parties’ reasonable attorneys’ and consultants’ fees and expenses incurred in any way connection with investigating, defending against or settling such Third Party Claims shall be included in the Indemnifying Party’s obligation to indemnify Losses for which the Indemnified Party except Parties may seek indemnification hereunder and such costs and expenses shall constitute Losses subject to indemnification under Section 7.2(a) (but subject to the extent other limitations under this Article VII) whether or not it is ultimately determined that such failure materially prejudices the Indemnifying Party’s ability to defend Third Party Claim itself is indemnifiable under Section 7.2(a). (b) In the action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory to the Indemnified Party, or event that the Indemnifying Party may, at its own expense is an Equityholder Indemnifying Party and without limiting its obligation the Stockholder Representative has consented to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without resolution of a Third Party Claim, the other Party’s prior written consentEquityholder Indemnifying Parties and the Equityholders shall have no power or authority to object under any provision of this Article VII to the amount of Losses resulting from, which consent (i) arising out of or relating to such Third Party Claim, and the Equityholder Indemnified Parties shall be entitled to indemnification for the entire amount of such Losses, subject to the applicable limitations contained in Section 7.3. In the case of event that the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the is an Equityholder Indemnifying Party and (ii) the Stockholder Representative does not, in accordance with the terms of this Section 7.5(b), consent to any such settlement or resolution, then the Parent Indemnified Parties and the Stockholder Representative shall attempt in good faith to agree upon the rights of the respective parties with respect to such settlement or resolution, subject to the limitations set forth in Section 7.3 and, if not resolved through negotiations, such dispute shall be resolved by litigation in the case appropriate court of competent jurisdiction or mediation (at the mutual agreement of the Parent Indemnified Party will not be unreasonably withheld; provided and the Stockholder Representative). (c) For the avoidance of doubt and subject to the other terms of this Agreement, the Responsible Party shall keep any information obtained in connection with any Third Party Claim confidential, and in no event shall the Responsible Party disclose such information to any third party (excluding any Equityholder that executed a Joinder Agreement) unless and until such consent may be withheld if party has executed a confidentiality agreement with respect to such information, or is otherwise subject to applicable confidentiality obligations, containing confidentiality terms no less favorable to the settlement or adjustment involves performance or admission by Company than those contained in Section 3 of the Indemnified PartyJoinder Agreement.

Third Party Claims. If The Indemnified Party shall promptly ------------------ notify the Indemnifying Parties of the existence of any claim, demand or other matter involving liabilities to third parties to which the Indemnifying Parties' indemnification obligations could apply and shall give the Indemnifying Parties a third party commences any action or makes any demand against a Seller reasonable opportunity to defend the same at their expense and with counsel of their own selection (who shall be approved by the Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(awhich approval shall not be withheld unreasonably)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing of such action or demand; provided, -------- however, that if (i) the Indemnified Party assumes shall at all times also have the right to fully participate in the defense of at its own expense, and (ii) the action and fails failure to provide prompt notice to so notify the Indemnifying Party, such failure Parties shall not limit in any way relieve the Indemnifying Party’s obligation to indemnify the Indemnified Party Parties from any liabilities that they may have hereunder or otherwise, except to the extent that such failure so to notify the Indemnifying Parties materially prejudices the rights of the Indemnifying Party’s ability Parties. If the Indemnifying Parties shall, within a reasonable time after said notice, fail to defend defend, the actionIndemnified Party shall have the right, but not the obligation, to undertake the defense of, and to compromise or settle the claim or other matter on behalf, for the account and at the risk and expense of the Indemnifying Parties. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify Parties shall not compromise or settle the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory to the Indemnified Party, claim or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In other matter for any event, the Party that has assumed the defense of such action shall provide the consideration other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only than the payment of money damages by without the Indemnifying Party and (ii) in the case prior written consent of the Indemnified Party will not Parties. The Indemnified Parties shall make available all information and assistance that the Indemnifying Parties may reasonably request; provided, however, that any associated expenses shall be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission paid by the Indemnified Party-------- Indemnifying Parties as incurred.

Third Party Claims. If a In the event that any Legal Proceedings shall be instituted or any claim or demand shall be asserted by any third party commences any action in respect of which indemnification may be sought under Section 10.2 or makes any demand against a Seller Indemnified Party10.3 (regardless of the limitations set forth in Section 10.5) (“Third Party Claim”), a Buyer Indemnified Party, or a SFI the Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled shall promptly give written notice of the assertion of the Third Party Claim to indemnification under this Agreement, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing of such action or demand; provided, however, that if failure of the Indemnified Party assumes the defense of the action and fails to provide prompt notice to so notify the Indemnifying Party, such failure Party shall not limit in any way release, waive or otherwise affect the Indemnifying Party’s obligation to indemnify the Indemnified Party obligations with respect thereto, except to the extent that such failure materially prejudices the Indemnifying Party’s ability Party can demonstrate actual Losses as a result of such failure. Subject to defend the action. The provisions of this Section 10.4, the Indemnifying Party mayshall have the right, at its own expense and without limiting sole expense, to be represented by counsel of its obligation to indemnify the Indemnified Partychoice, participate in the defense of such action with counsel which must be reasonably satisfactory to the Indemnified Party, and to defend against, negotiate, settle or otherwise deal with any Third Party Claim which relates to any Losses indemnified against by it hereunder; provided that, in order to defend against, negotiate, settle or otherwise deal with any such Third Party Claim, the Indemnifying Party maymust first acknowledge in writing to the Indemnified Party its unqualified obligation to indemnify the Indemnified Party as provided hereunder and provide to the Indemnified Party reasonable evidence that the Indemnifying Party has reasonably sufficient financial resources to enable it to fulfill its obligations under this Article X. Notwithstanding the preceding sentence, at the Indemnifying Party shall not have the right to defend against, negotiate, settle or otherwise deal with any Third Party Claim (i) if the Indemnified Party reasonably and in good faith believes that the Third Party Claim would reasonably be likely to be materially detrimental to the reputation, customer or supplier relations or future business prospects of the Indemnified Party or any of its own expense Affiliates, (ii) unless the Third Party Claim is solely for monetary damages (except where any non-monetary relief being sought is merely incidental to a primary claim for monetary damages), (iii) if the Third Party Claim involves criminal allegations, or (iv) if the Indemnifying Party fails to prosecute or defend, actively and without limiting diligently, the Third Party Claim. If the Indemnifying Party elects to defend against, negotiate, settle or otherwise deal with any Third Party Claim, it shall within five Business Days of the Indemnified Party’s written notice of the assertion of such Third Party Claim (or sooner if the nature of the Third Party Claim so requires) notify the Indemnified Party of its intent to do so; provided that the Indemnifying Party must conduct its defense of the Third Party Claim actively and diligently thereafter in order to preserve its rights in this regard. If the Indemnifying Party elects not to defend against, negotiate, settle or otherwise deal with any Third Party Claim, fails to notify the Indemnified Party of its election as herein provided or contests its obligation to indemnify the Indemnified PartyParty for Losses relating to such Third Party Claim under this Agreement, the Indemnified Party may defend against, negotiate, settle or otherwise deal with such Third Party Claim. If the Indemnified Party defends any Third Party Claim, then the Indemnifying Party shall reimburse the Indemnified Party for the reasonable and actual out-of-pocket expenses of defending such Third Party Claim upon submission of periodic bills. If the Indemnifying Party shall assume the defense of such action with counsel reasonably acceptable to any Third Party Claim, the Indemnified Party. In any eventParty may participate, the Party that has assumed at his or its own expense, in the defense of such action shall provide the other Third Party with copies of all noticesClaim; provided, pleadingshowever, and other papers filed or served in that such action. Neither Indemnified Party shall make be entitled to participate in any settlement or adjustment without such defense with separate counsel at the other Party’s prior written consent, which consent (i) in the case expense of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages if (i) so requested by the Indemnifying Party and to participate or (ii) in the case reasonable and written opinion of counsel to the Indemnified Party an actual conflict exists between the Indemnified Party and the Indemnifying Party which cannot be waived by the Indemnified Party; provided further that the Indemnifying Party shall not be required to pay for more than one such counsel (plus any appropriate local counsel) for all Indemnified Parties in connection with any single Third Party Claim. Each of Purchaser and Seller shall provide reasonable access to the other to such documents and information as may reasonably be requested in connection with the defense, negotiation or settlement of any Third Party Claim. Notwithstanding anything in this Section 10.4 to the contrary, the Indemnifying Party shall not enter into any settlement of any Third Party Claim without the written consent of the Indemnified Party will if such settlement (i) would create any Liability of the Indemnified Party for which the Indemnified Party is not be unreasonably withheld; provided that such consent may be withheld if the settlement entitled to indemnification hereunder, (ii) would provide for any injunctive relief or adjustment involves performance or admission by other non-monetary obligation affecting the Indemnified Party, or (iii) does not include an unconditional release of the Indemnified Party from all Liability in respect of the Third Party Claim. If the Indemnifying Party makes any payment on any Third Party Claim, the Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Party with respect to such Third Party Claim.

Third Party Claims. If the Indemnified Party shall receive notice of any claim by a third party commences which is or may be subject to indemnification (a "Third Party Claim"), the Indemnified Party shall give the Indemnitor prompt written notice of such Third Party Claim and the Indemnitor shall have the right, at its option, to assume the defense and settlement of such Third Party Claim or participate in the defense using counsel of its own choice and at its own expense so long as the Indemnitor agrees in writing in advance that any action Damages arising out of such Third Party Claim are covered by the indemnification hereunder; provided, however that the Indemnitor shall not have the right to assume the defense of a Third Party Claim: (i) to the extent such Third Party Claim seeks an injunction, restraining order, declaratory relief or makes other non-monetary relief and such Third Party Claim, if decided adversely, would have a Material Adverse Effect on the Indemnified Party; or (ii) if the named parties to any demand against a Seller such Third Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnitor, and (1) the Indemnified Party shall have been advised by counsel that there are one or more legal or equitable defenses available to it which are different from or additional to those available to the Indemnitor, and (2) in the reasonable opinion of counsel for the Indemnified Party, counsel for the Indemnitor would not be able to adequately represent the interests of the Indemnified Party because such interests would materially conflict with those of the Indemnitor and such Third Party Claim, if decided adversely, would have a Buyer Material Adverse Effect on the Indemnified Party, or . Regardless of which party is controlling the defense of a SFI Indemnified Third Party Claim: (as defined below in Section 11(a)i) for which such the 47 54 controlling party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify shall keep the other party (“Indemnifying Party”) in writing fully informed of such action or demandThird Party Claim at all stages thereof; provided(ii) the party not controlling the defense of such Third Party claim shall make available, howeverwithout charge, that if to the Indemnified other party all books and records of such party relating to such Third Party assumes Claim; and (iii) the party not controlling the defense of the action Third Party Claim shall cooperate with the other in connection therewith and fails shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith. In the event the Indemnitor exercises its right to provide prompt notice to assume the Indemnifying Partydefense of a Third Party Claim, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party maymay participate, through counsel of its own choice and at its own expense expense, in the defense of any Third Party Claim, action or suit as to which the Indemnitor has elected to assume and control the defense thereof and the Indemnitor shall not make any settlement of any such action, suit or proceeding without limiting its obligation to indemnify the written consent of the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event unless the settlement or adjustment involves only the payment of money damages by the Indemnifying Indemnitor without prejudice to the Indemnified Party. So long as the Indemnitor is defending in good faith any Third Party and (ii) in the case of Claim as to which indemnification has been sought hereunder, the Indemnified Party will shall not settle or compromise any Third Party Claim without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Partydelayed.

Third Party Claims. If (a) Except as set forth in Article IX, upon receipt by any Indemnitee of notice of any actual or possible claim, demand, suit, action, arbitration, investigation, inquiry or proceeding that has been or may be brought or asserted by a third party commences any action or makes any demand against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled Indemnitee and that may be subject to indemnification under this AgreementArticle VIII (a “Third Party Claim”), the Indemnitee shall notify the Indemnitor of such Third Party Claim and, except for any Third Party Claim that (w) alleges criminal conduct by the Indemnitee, (x) seeks material non-monetary relief against the Indemnitee, (y) seeks Damages that are reasonably likely to exceed 200% of the balance of the Escrow Fund available to satisfy such claim on the date the Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing receives notice of such action Claim or demand(z) seeks non-monetary relief and alleges patent infringement resulting from the practice of the Indemnitee’s Intellectual Property Rights and that affects only the Indemnitee’s business and Intellectual Property Rights, the Indemnitor shall have the right, in its sole and absolute discretion, to control the defense, compromise or settlement of such Third Party Claim. If the Indemnitor does not assume control of such defense, compromise or settlement, the Indemnitee shall control such defense, compromise or settlement; provided, however, that if the Indemnified Party assumes the defense of the action and fails to provide prompt notice notwithstanding anything to the Indemnifying Partycontrary in the foregoing, such failure any Third Party Claim alleging patent infringement and seeking non-monetary relief (whether or not in addition to other forms of relief) that affects both the Acquired Business and the Retained Business, shall be subject to Section 8.6(b) below (and not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except this Section 8.6(a)). The Indemnitee shall make available to the extent Indemnitor any documents and materials in its possession or control that may be reasonably necessary to defend, compromise or settle such failure materially prejudices the Indemnifying Party’s ability to defend the actionThird Party Claim. The Indemnifying Party maynon-controlling party shall be entitled, at its own expense sole option and expense, to participate in, but not to determine or conduct, any defense and investigation of such Third Party Claim or settlement negotiations with respect to such Third Party Claim. The Indemnitee shall not have the right to settle, adjust or compromise such Third Party Claim without limiting the consent of the Indemnitor. The Indemnitor shall not agree to any settlement, adjustment or compromise of such Third Party Claim that imposes any equitable remedy on the Indemnitee or any of its assets or that otherwise imposes any liability or obligation on the Indemnitee. For purposes of Section 8.5 and this Section 8.6, (a) if any or all of Sellers and the Consenting Parent Equity Holders comprise the Indemnitor, any references to the Indemnitor (except provisions relating to an obligation to indemnify the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory make any payments) shall be deemed to refer to the Indemnified PartySeller Representative, and (b) if any or all of Sellers and the Indemnifying Party mayConsenting Parent Equity Holders comprise the Indemnitee, at its own expense and without limiting its any references to the Indemnitee (except provisions relating to an obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable make or a right to receive any payments) shall be deemed to refer to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified PartySeller Representative.

Third Party Claims. If any Claims Notice identifies a Liability Claim brought by a third party commences any action or makes any demand against (a Seller “Third Party Claim” and together with the Liability Claims, the “Claims”), then the Indemnifying Party has the right, exercisable by written notice to the Indemnified Party within seven days after receipt of such Claims Notice, to assume and conduct the defense of such Third Party Claim in accordance with the limits set forth in this Agreement with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided, however, that (i) the defense of such Third Party Claim by the Indemnifying Party will not, in the reasonable judgment of the Indemnified Party, have a Buyer material adverse effect on the Indemnified Party; (ii) the Indemnifying Party has sufficient financial resources, in the reasonable judgment of the Indemnified Party, or to satisfy the amount of any adverse monetary judgment that is reasonably likely to result; (iii) the Third Party Claim solely seeks (and continues to seek) monetary damages; and (iv) the Indemnifying Party expressly agrees in writing that as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party may only satisfy and discharge the Third Party Claim in accordance with the limits set forth in this Agreement (the conditions set forth in clauses (i) through (iv) are, collectively, the “Litigation Conditions”). If the Indemnifying Party does not assume the defense of a SFI Third Party Claim in accordance with this Section 9.2(b), the Indemnified Party (may continue to defend the Third Party Claim. If the Indemnifying Party has assumed the defense of a Third Party Claim as defined below provided in this Section 11(a9.2(b)) , the Indemnifying Party will not be liable for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such any legal expenses subsequently incurred by the Indemnified Party will promptly notify in connection with the other party (“Indemnifying Party”) in writing defense of such action or demandthe Third Party Claim; provided, however, that if (i) any of the Litigation Conditions cease to be met or (ii) the Indemnifying Party fails to take reasonable steps necessary to defend diligently such Third Party Claim, the Indemnified Party assumes the defense of the action may assume its own defense, and fails to provide prompt notice to the Indemnifying Party, Party will be liable for all reasonable costs or expenses paid or incurred in connection with such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the actiondefense. The Indemnifying Party mayor the Indemnified Party, as the case may be, has the right to participate in (but not control), at its own expense and without limiting its obligation to indemnify the Indemnified Partyexpense, participate in the defense of such action with counsel reasonably satisfactory to any Third Party Claim which the Indemnified other is defending as provided in this Agreement. The Indemnifying Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that if it has assumed the defense of such action shall provide the other any Third Party with copies of all noticesClaim as provided in this Agreement, pleadingsmay not, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consentconsent of the Indemnified Party, which consent to a settlement of, or the entry of any judgment arising from, any such Third Party Claim that (i) does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party a complete release from all liability in respect of such Third Party Claim, (ii) grants any injunctive or equitable relief or (iii) may reasonably be expected to have a material adverse effect on the case Indemnified Party. The Indemnified Party has the right to settle any Third Party Claim, the defense of the Indemnifying Party will which has not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages been assumed by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Party.

Third Party Claims. If a claim by a third party commences is made against any action or makes any demand against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI and if such Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled intends to indemnification seek indemnity with respect thereto under this AgreementArticle VIII, such Indemnified Party will shall promptly notify the other party (“Indemnifying Party”) in writing Party of such action or demandclaims pursuant to Section 8.3; provided, however, that if the Indemnified Party assumes the defense of the action and fails failure to provide prompt notice to so notify shall not relieve the Indemnifying PartyParty of its obligations hereunder, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the actionParty is actually and materially prejudiced thereby. The Indemnifying Party mayshall have thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at its own the expense and without limiting its obligation of the Indemnifying Party, of the settlement or defense thereof; provided, that (i) the Indemnifying Party shall permit the Indemnified Party to indemnify the participate in such settlement or defense through counsel chosen by such Indemnified Party, participate in provided that the defense fees and expenses of such action with counsel reasonably satisfactory to the shall be borne by such Indemnified Party, or Party and (ii) the Indemnifying Party may, at its own expense and without limiting its obligation shall promptly be entitled to indemnify the Indemnified Party, assume the defense of such action only to the extent the Indemnifying Party acknowledges its indemnity obligation and assumes and holds such Indemnified Party harmless from and against the full amount of any Loss resulting therefrom; provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party if (i) the parties agree, reasonably and in good faith, that such third-party claim would give rise to Losses which are more than twice the amount indemnifiable by such Indemnifying Party pursuant to this Article VIII; (ii) the claim for indemnification relates to or arises in connection with any criminal Proceeding, action, indictment, allegation or investigation; (iii) the claim seeks an injunction or equitable relief against the Indemnified Party; (iv) the Indemnified Party has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party; (v) the Indemnified Party reasonably acceptable believes an adverse determination with respect to the action, lawsuit, investigation, Proceeding or other claim giving rise to such claim for indemnification would be detrimental to or injure the Indemnified Party’s reputation or future business prospects; or (vi) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim. Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (i) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, (ii) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, which authorization shall not be unreasonably withheld, or (iii) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which either are not available to the Indemnifying Party, or are available to the Indemnifying Party but the assertion of which would be adverse to the interests of the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of So long as the Indemnifying Party will is reasonably contesting any such claim in good faith, the Indemnified Party shall not be unreasonably withheld pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in the such event the settlement or adjustment involves only the payment of money damages it shall waive any right to indemnity therefor by the Indemnifying Party for such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that is not entirely indemnifiable by the Indemnifying Party pursuant to this Article VIII and (ii) does not include as an unconditional term thereof the giving by the Person or Persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment. The Indemnifying Party and the Indemnified Party shall cooperate with each other in all reasonable respects in connection with the case defense of any claim, including making available records relating to such claim and furnishing, without expense to the Indemnifying Party and/or its counsel, such employees of the Indemnified Party will not be unreasonably withheld; provided that such consent as may be withheld if reasonably necessary for the settlement preparation of the defense of any such claim or adjustment involves performance or admission by the Indemnified Partyfor testimony as witnesses in any Proceeding relating to such claim.

Third Party Claims. If All claims for indemnification made under this Agreement resulting from, related to or arising out of a third third-party commences any action or makes any demand claim against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI an Indemnified Party shall be made in accordance with the following procedures. A Party entitled to indemnification under this ARTICLE VII (as defined below in Section 11(a)) for which such party (an “Indemnified Party”) shall give prompt written notification to the Party from whom indemnification is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify sought (the other party (“Indemnifying Party”) in writing of the commencement of any action, suit or proceeding relating to a third-party claim for which indemnification may be sought or, if earlier, upon the assertion of any such action or demandclaim by a third party; provided, however, that if no delay or failure on the part of the Indemnified Party assumes the defense of the action and fails to provide prompt notice to in notifying the Indemnifying Party, such failure Party shall not limit in any way relieve the Indemnifying Party’s Party of any liability or obligation to indemnify the Indemnified Party hereunder, except to the extent that such failure the defense of any third-party suit, action or proceeding has been materially prejudices harmed or prejudiced by the Indemnifying Indemnified Party’s ability delay or failure to defend give such notice. Within thirty (30) days after delivery of such notification, the action. The Indemnifying Party may, at its own expense and without limiting its obligation upon written notice thereof to indemnify the Indemnified Party, participate in assume control of the defense of such action action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party, or ; provided that the Indemnifying Party mayshall only be permitted to assume such defense so long as (i) such Third Party Claim does not involve criminal or quasi criminal allegations and involves only monetary damages and does not seek an injunction or other equitable relief (other than in connection with a claim of infringement of third party intellectual property made in conjunction with a demand for monetary damages arising from infringement prior to the Closing), (ii) the aggregate amount claimed pursuant to such Third Party Claim does not exceed two times (2X) the then-remaining amount for which the Indemnifying Party may be liable following the application of the limitations in Section 7.5(b), and (iii) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense expense; provided, that if the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes, based on advice from counsel, that (A) the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such action, suit, proceeding or claim, (B) there are legal defenses available to the Indemnified Party that are different from or additional to those available to the Indemnifying Party, or (C) there is a significant probability that an action, suit, proceeding or claim would materially and adversely affect the Indemnified Party other than with respect to monetary damages for which it would be entitled to indemnification under this Agreement, the reasonable fees and expenses of counsel to the Indemnified Party solely in connection therewith shall be considered “Damages” for purposes of this Agreement; provided, however, that in no event shall the Indemnifying Party be responsible for the fees and expenses of more than one counsel for all Indemnified Parties. The Party controlling such defense shall keep the other Party advised of the status of such action, suit, proceeding or claim and the defense thereof and shall consider in good faith recommendations made by the other Party with respect thereto. The Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without limiting its the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. The Indemnifying Party shall not agree to any settlement of such action, suit, proceeding or claim that does not include a complete release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation to indemnify on the Indemnified Party without the prior written consent of the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will shall not be unreasonably withheld; provided that such consent may be withheld if the settlement , conditioned or adjustment involves performance or admission by the Indemnified Partydelayed.

Third Party Claims. (a) If a claim by a third party commences is made against any action or makes any demand against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(aa “Third Party Claim”)) for which , and if such party (“Indemnified Party”) is entitled Party intends to indemnification seek indemnity with respect thereto under this AgreementArticle VIII, such Indemnified Party will shall promptly notify the other party (“Indemnifying Party”) in writing Party of such action or demandThird Party Claim; provided, however, that if the Indemnified Party assumes the defense of the action and fails failure to provide prompt notice to so notify shall not relieve the Indemnifying PartyParty of its obligations hereunder, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the actionParty is actually and materially prejudiced thereby. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in the defense shall have three (3) Business Days after receipt of such action with counsel reasonably satisfactory notice to the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party. In , of the settlement or defense of such Third Party Claim; provided, that the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party; provided, that the fees and expenses of such counsel shall be borne by such Indemnified Party, and provided, further, that the Indemnifying Party shall not be entitled to assume control of such defense (unless otherwise agreed by the Indemnified Party) and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) such Third Party Claim for indemnification relates to or arises in connection with any eventcriminal proceeding, action, indictment, allegation or investigation or involves an action brought by or on behalf of a Governmental Entity; (ii) such Third Party Claim seeks an attachment (embargo), injunctive or equitable relief or other non-monetary relief against the Indemnified Party; (iii) the Indemnifying Party, in the reasonable judgment of the Indemnified Party, failed or is failing to vigorously prosecute or defend such Third Party Claim (in which case the Indemnifying Party shall surrender control to the Indemnified Party upon request of the Indemnified Party); (iv) a conflict of interest exists or arises that has assumed prohibits, in the reasonable judgment of the Indemnified Party, a single counsel from representing both the Indemnifying Party and Indemnified Party in connection with the defense of such action shall provide Third Party Claim; (v) the other defense of such Third Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages Claim by the Indemnifying Party and (ii) will, in the case reasonable judgment of the Indemnified Party, have a material adverse effect on the Indemnified Party will or any business thereof; or (vi) the Indemnifying Party does not be unreasonably withheld; provided that such consent may be withheld if have sufficient financial resources, in the settlement or adjustment involves performance or admission by reasonable judgment of the Indemnified Party, to satisfy the amount of any adverse monetary judgment that is reasonably likely to result.

Third Party Claims. LICENSEE shall use its best efforts to detect any possible infringements, claims or actions in derogation of any Licensed Rights by any third parties in the Territory (each, a "THIRD PARTY CLAIM" and collectively, "THIRD PARTY CLAIMS") and shall notify MOSSIMO promptly of any such Third Party Claims. Subject to Section 7.7(b), LICENSEE shall take all necessary action on account of such Third Party Claims to protect the Licensed Rights. If LICENSEE initiate any legal proceedings on account of any such Third Party Claim, MOSSIMO shall cooperate with and assist LICENSEE to the extent reasonably necessary to protect the Licensed Rights (other than the payment of fees and expenses by MOSSIMO). If MOSSIMO elects to participate in or assume responsibility for any legal proceedings on account of any Third Party Claim pursuant to Section 7.7(b), and/or if a third party commences any action or makes any demand against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing licensee of such action or demand; provided, however, that if the Indemnified Party assumes the defense of the action and fails to provide prompt notice to the Indemnifying Party, such failure shall not limit MOSSIMO participates in any way the Indemnifying Party’s obligation such Third Party Claim pursuant to indemnify the Indemnified Party except Section 7.7(b), LICENSEE shall cooperate with and assist MOSSIMO and/or such third party licensee to the extent that such failure materially prejudices reasonably necessary to protect the Indemnifying Party’s ability to defend the actionLicensed Rights. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action LICENSEE shall provide the other Party with courtesy copies of all noticescorrespondence related to Third Party Claims to MOSSIMO and any attorney designated by MOSSIMO. In no event shall LICENSEE resolve, pleadings, and other papers filed settle or served in such action. Neither otherwise dispose of any Third Party shall make any settlement or adjustment Claim without the other Party’s prior written consentapproval of MOSSIMO. LICENSEE shall bear all fees and expenses incurred in connection with the legal proceedings related to any Third Party Claim and shall be the sole recipient of any damages received from such proceedings; PROVIDED, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld HOWEVER, that in the event the settlement or adjustment involves only the payment MOSSIMO and/or a third party licensee of money damages by the Indemnifying Party and (ii) MOSSIMO participates in the case legal proceedings related to such Third Party Claim pursuant to Section 7.7(b), MOSSIMO and/or such third party licensee of MOSSIMO shall share in the Indemnified expenses related to the Third Party will not Claim in such amounts as MOSSIMO determines in its sole and complete discretion and the damages received from such Third Party Claim shall be unreasonably withheld; provided shared in proportion to the expenses borne by each of them. At the end of each month during the Term, LICENSEE shall provide MOSSIMO with a status report that such consent may be withheld if the settlement or adjustment involves performance or admission summarizes any Third Party Claim activities undertaken by the Indemnified PartyLICENSEE.

Third Party Claims. If a third party commences In the event that subsequent to the Closing any action or makes any demand against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party Person entitled to indemnification under this Agreement (as defined below in Section 11(a)) for which such party (an “Indemnified Party”) receives notice of the assertion of any claim or of the commencement of any action or proceeding by any Person who is entitled not a party to this Agreement or an Affiliate of a party to this Agreement (including, without limitation, any Federal, state or local domestic or foreign Governmental Authority) (a “Third Party Claim”) against such Indemnified Party, with respect to which a party to this Agreement is or may be required to provide indemnification under this Agreement, such Indemnified Party will promptly notify the other party Agreement (an “Indemnifying Party”) in writing of such action or demand; provided), however, that if the Indemnified Party assumes the defense of the action and fails to provide prompt shall give written notice to the Indemnifying Party, Party as promptly as practicable after learning of such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the actionclaim. The Indemnifying Party mayshall not have the right to conduct the defense or compromise and settle any such Third Party Claim; however, at its own expense and without limiting its obligation any Indemnifying Party shall be entitled to indemnify the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory Third Party Claim at such Indemnifying Party’s expense, and at its option (subject to the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation limitations set forth below) shall be entitled to indemnify the Indemnified Party, assume the defense of such action with thereof by appointing reputable counsel reasonably acceptable to the Indemnified Party. In any eventParty to be the lead counsel in connection with such defense; provided that, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of to the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment assuming control of money damages by the Indemnifying Party and (ii) in the case of such defense it shall first verify to the Indemnified Party will not be unreasonably withheld; provided in writing that such consent may Indemnifying Party shall be withheld if the settlement or adjustment involves performance or admission by fully responsible (with no reservation of any rights) for all Liabilities relating to such claim for indemnification and that such Indemnifying Party shall provide full indemnification to the Indemnified Party.Party with respect to such action, lawsuit, proceeding, investigation or other claim giving rise to such claim for indemnification hereunder; and provided further, that:

Third Party Claims. If a third party commences any action or makes any demand against a Seller Indemnified Party(i) Subject to Section 9.03(b)(ii), a Buyer Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing of such action or demand; provided, however, that if the Indemnified Party assumes shall have the defense right to conduct and control, through counsel of the action and fails to provide prompt notice its choosing (but reasonably acceptable to the Indemnifying Party), such failure shall not limit the defense, compromise or settlement of any third Person claim, action or suit (each, a “Third Party Claim”) against any Indemnified Party as to which indemnification will be sought by any Indemnified Party hereunder, and in any way such case the Indemnifying Party’s obligation to indemnify parties hereto shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party except to the extent in connection therewith; provided, that such failure materially prejudices (A) the Indemnifying Party’s ability to defend the action. The Indemnifying Party maymay participate, through counsel chosen by it and at its own expense and without limiting its obligation to indemnify the Indemnified Partyexpense, participate in the defense of any such claim, action with counsel reasonably satisfactory or suit (including, without limitation, any audit or administrative or judicial proceeding related to Taxes) as to which the Indemnified Party, or Party has so elected to conduct and control the Indemnifying Party may, at its own expense defense thereof; and without limiting its obligation to indemnify (B) the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment not, without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will which written consent shall not be unreasonably withheld; ), pay, compromise or settle any such claim, action or suit (including, without limitation, any audit, assessment, or adjustment related to Taxes). Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such claim, action or suit without such consent, provided that in such consent may be withheld if the settlement or adjustment involves performance or admission by event the Indemnified PartyParty shall waive any right to indemnity therefor hereunder.

Third Party Claims. If a third party commences any action or makes any demand against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI (a) The Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to seeking indemnification under this Agreement, such Indemnified Party will Agreement shall promptly notify the other party Party against whom indemnification is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any action, suit or proceeding by any Third Party (a “Third Party Claim”), in writing respect of which indemnity may be sought hereunder and shall give the Indemnifying Party such action or demand; providedinformation with respect thereto as the Indemnifying Party may reasonably request, howeverbut failure to give such notice shall not relieve the Indemnifying Party of any liability hereunder (unless and to the extent that the Indemnifying Party has suffered material prejudice by such failure). The Indemnifying Party shall have the right, that if but not the obligation, exercisable by written notice to the Indemnified Party assumes within twenty (20) days of receipt of notice from the Indemnified Party of the commencement of or assertion of such Third Party Claim, to assume the defense and control the settlement of the action any such Third Party Claim if and fails to provide prompt notice to only if (i) the Indemnifying Party, such failure shall not limit Party acknowledges in any way the Indemnifying Party’s writing its obligation to indemnify the Indemnified Party except for any and all damages, losses and liabilities arising out of such Third Party Claim, (ii) such Third Party Claim involves (and continues to involve) claims solely for money damages and/or involves (and continues to involve) claims for both money damages and equitable relief against the Indemnified Party that cannot be severed, where, in the reasonable good faith opinion of Buyer, the claims for money damages are the primary claims asserted by the Third Party and the claims for equitable relief are incidental to the extent claims for money damages. In the event that such failure materially prejudices the Indemnifying Party’s ability Party exercises its right to defend the action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in control the defense of such action with counsel reasonably satisfactory to the Indemnified Partyany Third Party Claim as provided above, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide then the other Party with copies of all notices, pleadings, and other papers filed or served shall cooperate in such action. Neither Party shall defense and make any settlement or adjustment without the other available all witnesses, pertinent records, materials and information in such Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages possession and control relating thereto as is reasonably required to by the Indemnifying Party and (ii) in conducting the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Partydefense.

Third Party Claims. If (a) The Indemnifying Party shall have the right to assume and pursue, at its sole cost and expense, the defense of any claim or Proceeding by a third party commences any action or makes any demand against (a Seller “Third Party Claim”), with counsel selected by it, which counsel shall be reasonably acceptable to the Indemnified Party, a Buyer Indemnified Party, or a SFI upon notification thereof to the Indemnified Party within forty-five (as defined below in Section 11(a)45) for which such party (“Indemnified Party”) is entitled days after the Notice of Claim has been delivered to indemnification under this Agreement, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing of such action or demand; provided, however, that the Indemnifying Party shall not have the right to assume or pursue, or to continue to assume or pursue, the defense of a Third Party Claim if (i) such Third Party Claim seeks exclusively equitable or injunctive relief against a Purchaser Indemnified Party; (ii) such Third Party Claim involves a request for monetary relief and also equitable or injunctive against a Purchaser Indemnified Party which, if granted, would adversely impact , in any material manner, the business or business reputation of a Purchaser Indemnified Party; (iii) the Indemnified Party reasonably concludes, based on the written opinion of counsel, that there is an irreconcilable conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of such defense; or (iv) the Indemnifying Party fails to deliver, at or before the time it assumes the defense of the action and fails such Third Party Claim, evidence reasonably acceptable to provide prompt notice to the Indemnifying Party, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation will have adequate financial resources to indemnify defend against such Third Party Claim (it being acknowledged that a written statement from either of Seller’s private equity sponsors that such sponsor will provide financial support for such assumption of defense shall be sufficient evidence of adequate financial resources). If (A) the Indemnified Party, Party does not receive such notification from the Indemnifying Party within such forty-five (45) day period that the Indemnifying Party will assume the defense of such action with counsel reasonably acceptable to Third Party Claim; (B) at any time after the Indemnified Party. In any event, the Indemnifying Party that has assumed the defense of such action shall provide the other a Third Party with copies of all noticesClaim, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be withdraws from such defense or fails to adequately perform, or unreasonably withheld delays in performing, its obligations to assume or pursue the event the settlement defense of any such Third Party Claim or adjustment involves only the payment of money damages by (C) the Indemnifying Party and (ii) is not permitted to assume or conduct, or at any time after the Indemnifying has assumed the defense of a Third Party Claim, the Indemnifying Party is no longer permitted to assume or conduct, the defense of a Third Party Claim in accordance with the case of immediately preceding sentence, the Indemnified Party will not shall be unreasonably withheld; provided that entitled to assume, commence and pursue its defense of such consent may Third Party Claim and be withheld indemnified for the reasonable fees and expenses of counsel selected by it (limited to one (1) firm for all Indemnified Parties and, if applicable, one (1) local counsel in each applicable jurisdiction for all Indemnified Parties) (which fees and expenses shall be Losses under this Agreement), if such Indemnified Party is entitled to indemnification with respect to such Third Party Claim pursuant to this Article VI. The Indemnified Party shall promptly inform the settlement or adjustment involves performance or admission by the Indemnified PartyIndemnifying Party of all material developments related thereto.

Third Party Claims. If a third party commences any action or makes any demand against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI (a) The Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to seeking indemnification under this Agreement, such Indemnified Party will Agreement shall promptly notify the other party Party against whom indemnification is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any action, suit or proceeding by any Third Party (a “Third Party Claim”), in writing respect of which indemnity may be sought hereunder and shall give the Indemnifying Party such action or demand; providedinformation with respect thereto as the Indemnifying Party may reasonably request, howeverbut failure to give such notice shall not relieve the Indemnifying Party of any liability hereunder (unless and to the extent that the Indemnifying Party has suffered material prejudice by such failure). The Indemnifying Party shall have the right, that if but not the obligation, exercisable by written notice to the Indemnified Party assumes within twenty (20) days of receipt of notice from the Indemnified Party of the commencement of or assertion of such Third Party Claim, to assume the defense and control the settlement of the action any such Third Party Claim if and fails to provide prompt notice to only if (i) the Indemnifying Party, such failure shall not limit Party acknowledges in any way the Indemnifying Party’s writing its obligation to indemnify the Indemnified Party except for any and all Losses arising out of such Third Party Claim, (ii) such Third Party Claim involves (and continues to involve) claims solely for money damages or involves (and continues to involve) claims for both money damages and equitable relief against the extent Indemnified Party that such failure materially prejudices cannot be severed, where, in the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify reasonable good faith opinion of the Indemnified Party, participate in the claims for money damages are the primary claims asserted by the Third Party and the claims for equitable relief are incidental to the claims for money damages. In the event that the Indemnifying Party exercises its right to control the defense of such action with counsel reasonably satisfactory to the Indemnified Partyany Third Party Claim as provided above, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide then the other Party with copies of all notices, pleadings, and other papers filed or served shall cooperate in such action. Neither Party shall defense and make any settlement or adjustment without the other available all witnesses, pertinent records, materials and information in such Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages possession and control relating thereto as is reasonably required by the Indemnifying Party and (ii) in conducting the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Partydefense.

Third Party Claims. If a In the event of third party commences any action or makes any demand against a Seller claims, each Party ("Indemnified Party, a Buyer ") shall give written notice to the other Party ("Indemnifying Party") as soon as practicable and in no event later than ten business days after the Indemnified PartyParty has knowledge, or a SFI Indemnified Party (as defined below the discovery, of any facts which in Section 11(a)) for which such party (“Indemnified Party”) is entitled its opinion entitle or may entitle it to indemnification under this AgreementSection 10.3. Seller, on the one hand, and LBI Holdings and Buyer, on the other, shall be considered a single Party for purposes of this Section 10.3 or Section 10.4. However, failure to give such Indemnified Party notice will promptly notify the other party (“Indemnifying Party”) in writing of such action or demand; provided, however, that if not preclude the Indemnified Party assumes from seeking indemnification hereunder, unless, and to the defense of the action and fails extent that, such failure adversely affects to provide prompt notice to a material degree the Indemnifying Party, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s 's ability to defend the actionagainst such a claim. The Indemnifying Party maywill promptly defend such a claim by counsel approved by the Indemnified Party, which approval shall not be unreasonably withheld, and the Indemnified Party may appear at any proceeding, at its own expense cost, by counsel of its own choosing and without limiting its obligation to indemnify the Indemnified Party, participate will otherwise reasonably cooperate in the defense of such action with counsel reasonably satisfactory claim, provided that the Indemnifying Party shall promptly reimburse the Indemnified Party all reasonable costs, expenses and attorneys' fees incurred in the course of cooperating in the defense of such claim. The Indemnifying Party shall be responsible for all costs and expenses of any settlement. If the Indemnifying Party within ten business days after notice of a claim fails to defend the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that entitled to undertake the defense, compromise or settlement of such consent may be withheld if claim at the settlement or adjustment involves performance or admission by expense of and for the Indemnified account and risk of the Indemnifying Party.. Anything in this Section to the contrary notwithstanding:

Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a third party commences any action to this Agreement or makes any demand against an Affiliate of a Seller Indemnified Party, a Buyer Indemnified Party, party to this Agreement or a SFI Representative of the foregoing (a “Third Party Claim”) against such Indemnified Party (as defined below in Section 11(a)) for with respect to which such party (“Indemnified Party”) the Indemnifying Party is entitled obligated to provide indemnification under this Agreement, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing of such action or demand; provided, however, that if the Indemnified Party assumes shall give the defense Indemnifying Party prompt written notice thereof, but in any event not later than five (5) calendar days after receipt of such notice of such Third Party Claim. Such notice shall set forth in reasonable detail such Third Party Claim and the action and fails to provide prompt notice basis for indemnification (taking into account the information then available to the Indemnified Party). The failure to so notify the Indemnifying Party, such failure Party shall not limit in any way relieve the Indemnifying Party’s obligation to indemnify the Indemnified Party of its obligations hereunder, except to the extent that such failure materially prejudices shall have adversely prejudiced the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense and without limiting its obligation shall be entitled to indemnify the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory any Third Party Claim and, subject to the Indemnified Partylimitations set forth in this Section 8.05, or shall be entitled to control and appoint lead counsel for such defense, in each case at its own expense; provided that prior to assuming control of such defense, the Indemnifying Party may, at its own expense must (i) acknowledge that it would have an indemnity obligation for the Losses resulting from such Third Party Claim as provided under this Article VIII and without limiting its obligation to indemnify (ii) furnish the Indemnified PartyParty with reasonable evidence that the Indemnifying Party has adequate resources to defend the Third Party Claim and fulfill its indemnity obligations hereunder. The foregoing notwithstanding, the Indemnifying Party shall not be entitled to assume or maintain control of the defense of such action any Third Party Claim if (i) the Indemnifying Party does not deliver the acknowledgment referred to in this Section 8.05(a) within 30 days of receipt of notice of the Third Party Claim, (ii) the Third Party Claim relates to or arises in connection with counsel any criminal proceeding, action, indictment, allegation or investigation, (iii) the Indemnified Party reasonably acceptable believes an adverse determination with respect to the Third Party Claim would be materially detrimental to the reputation or future business prospects of the Indemnified PartyParty or any of its Affiliates, (iv) the Third Party Claim seeks an injunction or equitable relief against the Indemnified Party or any of its Affiliates, or (v) the Indemnifying Party has failed or is failing to prosecute or defend vigorously the Third Party Claim. In any event, If the Indemnifying Party that has assumed shall assume the control of the defense of such action shall provide any Third Party Claim in accordance with the other Party with copies provisions of all noticesthis Section 8.05, pleadings, and other papers filed or served in such action. Neither the Indemnifying Party shall make obtain the prior written consent of the Indemnified Party before entering into any settlement or adjustment without of such Third Party Claim; provided that consent of the other Party’s prior written consent, which consent Indemnified Party shall not be required for any such settlement if (i) the sole relief provided is monetary damages that are paid in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages full by the Indemnifying Party and (ii) such settlement includes an unconditional release of the Indemnified Party, as the case may be, from all Liabilities on claims that are the subject matter of such Third Party Claim and does not include any statement as to or any admission of fault, culpability or failure to act by or on behalf of the Indemnified Party. In circumstances where the Indemnifying Party is controlling the defense of a Third Party Claim in accordance with the foregoing, the Indemnified Party shall be entitled to participate in the defense of any Third Party Claim and to employ separate counsel of its choice for such purpose, in which case the fees and expenses of such separate counsel shall be borne by the Indemnified Party; provided that the fees and expenses of such separate counsel shall constitute indemnifiable Losses hereunder (i) to the extent incurred by the Indemnified Party prior to the date that the Indemnifying Party assumes control of the defense of the Third Party Claim or (ii) if the Indemnified Party is advised by counsel that (A) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such claim or (B) there may be one or more defenses or claims available to the Indemnified Party that are different from or additional to those available to the Indemnifying Party and that could be materially adverse to the Indemnifying Party. In the case of the foregoing clause (ii), the Indemnifying Party shall keep the Indemnified Party will not reasonably informed with respect to such Third Party Claim and cooperate with the Indemnified Party in connection therewith. Each party shall cooperate, and cause its Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be unreasonably withheld; provided that furnished such consent records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be withheld reasonably requested in connection therewith. Notwithstanding anything herein to the contrary, if the settlement Third Party Claim relates to Taxes or adjustment involves performance or admission by Tax liability, the Indemnified Partyparties shall address the defense and other actions with respect to such Third Party Claim in accordance with the provisions of Article VI hereof.

Third Party Claims. (a) If a Proceeding by a third party commences (a “Third Party Claim”) is made against any action or makes any demand against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party Person entitled to indemnification pursuant to Section 8.2 hereof (as defined below in Section 11(a)) for which such party (an “Indemnified Party”) is entitled ), and if such Indemnified Party intends to indemnification seek indemnity with respect thereto under this AgreementArticle VIII, such Indemnified Party will shall promptly notify the other party obligated to indemnify such Indemnified Party (or, in the case of a Parent Indemnitee seeking indemnification, such Parent Indemnitee shall promptly notify Member Representative) (such notified party, the “Indemnifying Responsible Party”) in writing of such action or demandclaims; provided, however, provided that if the Indemnified Party assumes the defense of the action and fails failure to provide prompt notice to the Indemnifying Party, such failure so notify shall not limit in any way relieve the Indemnifying Party’s obligation to indemnify the Indemnified Responsible Party of its obligations hereunder, except to the extent that such failure the Responsible Party is actually and materially prejudices the Indemnifying Party’s ability to defend the actionprejudiced thereby. The Indemnifying Responsible Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in the defense shall have 30 days after receipt of such action with counsel reasonably satisfactory notice to the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Party. In any event, of the Party that has assumed the settlement or defense of such action shall provide the other Party with copies of all notices, pleadingsthereof, and other papers filed or served in such action. Neither the Indemnified Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent cooperate with it in connection therewith; provided that (i) the Responsible Party shall permit the Indemnified Party to participate in the case of the Indemnifying Party will not be unreasonably withheld in the event the such settlement or adjustment involves only the payment of money damages defense through counsel chosen by the Indemnifying such Indemnified Party and (ii) the fees and expenses of such counsel shall be borne by such Indemnified Party. Notwithstanding the foregoing, the Responsible Party shall be liable for the reasonable fees and expenses of counsel employed by the Indemnitee if and only to the extent that representation of the Responsible Party and the Indemnitee by the same counsel would, in the reasonable opinion of such counsel, constitute a conflict of interest under applicable standards of professional conduct. So long as the Responsible Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Responsible Party or from the Escrow Account, as the case may be, for such claim unless the Responsible Party shall have consented to such payment or settlement. If the Responsible Party does not notify the Indemnified Party within 30 days after the receipt of the Indemnified Party’s notice of a Third Party will Claim hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the Third Party Claim but shall not be unreasonably withheld; provided that such thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party shall not, except with the consent may be withheld if the settlement or adjustment involves performance or admission by of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the Person or Persons asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim or consent to entry of any judgment.

Third Party Claims. (a) If a third party commences any action Claim by a Person who is not a Party or makes any demand against an Affiliate thereof (including such a Seller Indemnified Party, a Buyer Indemnified Party, Claim with respect to or arising out of Taxes brought by the Internal Revenue Service or a SFI Indemnified similar Governmental Entity) (a “Third Party Claim”) is made against any Person entitled to indemnification pursuant to Section 9.2 (as defined below in Section 11(a)) for which such party (an “Indemnified Party”) is entitled ), and if such Person intends to indemnification seek indemnity with respect thereto under this AgreementARTICLE IX, such Indemnified Party will promptly notify shall promptly, following the other party Indemnified Party’s knowledge of such Third Party Claim, give a Notice of Claim to the Party obligated to indemnify such Indemnified Party (such notified Party, the “Indemnifying Responsible Party”) in writing ); provided that the failure to give such Notice of such action or demand; provided, however, that if Claim shall not affect the Indemnified Party assumes the defense of the action Party’s right to seek indemnification pursuant to this ARTICLE IX and fails to provide prompt notice to the Indemnifying Party, such failure shall not limit in any way relieve the Indemnifying Party’s obligation to indemnify the Indemnified Responsible Party of its obligations hereunder, except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the actionResponsible Party is actually prejudiced thereby. The Indemnifying Responsible Party mayshall have thirty (30) days after receipt of such notice to assume the conduct and control, at its own expense and without limiting its obligation to indemnify the Indemnified Partythrough counsel (including, participate as applicable, counsel and/or an accounting firm in the defense case of such action with counsel reasonably satisfactory a Claim relating to the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel Taxes) reasonably acceptable to the Indemnified Party. In any event, Party and at the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case expense of the Indemnifying Party will not be unreasonably withheld in the event Responsible Party, of the settlement or adjustment involves only defense thereof. The Indemnified Party shall reasonably cooperate and assist the payment Responsible Party in determining the validity of money damages any Third Party Claim for indemnity by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that and in otherwise resolving such consent may be withheld if matters. Such assistance and cooperation shall include providing reasonable access to and copies of information, records and documents relating to such matters, furnishing employees to assist in the settlement or adjustment involves performance or admission by the Indemnified Partyinvestigation, defense and resolution of such matters and providing legal and business assistance with respect to such matters during normal business hours and after reasonable advance notice.

Third Party Claims. If (a) Upon receipt of a third party commences any action or makes any demand against Claim Notice in respect of a Seller Indemnified PartyThird‑Party Claim, a Buyer Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing of such action or demand; provided, however, that if the Indemnified Party assumes the defense of the action and fails to provide prompt notice subject to the Indemnifying Partylimitations set forth herein, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Party may, at its own option by delivering written notice to the applicable Indemnified Parties within thirty (30) days of receipt of such Claim Notice, assume and control the investigation and defense of, at its sole cost and expense and without limiting with its obligation own counsel of recognized standing and competence reasonably acceptable to indemnify the such Indemnified Party, assume the defense of any such action with counsel reasonably acceptable Third‑Party Claim and shall be entitled to assert any and all defenses available to the Indemnified Party. In any eventParty to the fullest extent permitted by applicable Law; provided that, notwithstanding the foregoing, no Indemnifying Party that has assumed shall be entitled to assume or control the investigation, defense or prosecution of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent Third‑Party Claim if (i) in the case substantially all of the Indemnifying Party will damages associated with such Third‑Party Claim are not reasonably expected to be unreasonably withheld indemnifiable hereunder (including in the event the settlement or adjustment involves only amount in dispute is reasonably likely to exceed the payment of money damages by maximum amount for which the Indemnifying Party and can then be liable pursuant to this Article IX in light of the limitations on indemnification contained herein), (ii) in at the case time of assumption and thereafter, the Indemnifying Party fails to demonstrate its ability to conduct the investigation, defense or prosecution actively and diligently, (iii) such claim seeks non‑monetary, equitable or injunctive relief or alleges any violation of criminal Law, (iv) the Indemnifying Party is also a party to such Third‑Party Claim and the Indemnified Party will determines in good faith after consultation with outside counsel that joint representation would be inappropriate, or (v) the Indemnifying Party does not be unreasonably withheld; provided agree in writing that it is obligated (without reservation of any rights) to pay all Losses arising from or related to such consent may be withheld if claim subject only to the settlement or adjustment involves performance or admission by the Indemnified Partylimitations on indemnification contained herein.

Third Party Claims. If a third party commences any action or makes any demand against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party receives notice of the assertion or commencement of any Legal Proceeding made or brought by any Person who is not a Party or an Affiliate of a Party (as defined below in Section 11(a)) for which such party (a “Indemnified PartyThird Party Claim”) is entitled against such Indemnified Party with respect to indemnification which indemnity may be sought from the Indemnifying Party under this Agreement, such the Indemnified Party will promptly notify shall give the other party (“Indemnifying Party”) in writing of Party prompt written notice thereof. The failure to give such action or demand; providedprompt written notice shall not, however, that if the Indemnified Party assumes the defense of the action and fails to provide prompt notice to relieve the Indemnifying PartyParty of its indemnification obligations, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except and only to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the actionParty is actually prejudiced by reason of such failure. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify Such notice by the Indemnified Party, participate Party shall describe the Third-Party Claim in reasonable detail (taking into account the defense of such action with counsel reasonably satisfactory information then available to the Indemnified Party), shall include copies of all material written information from such third party and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. In connection with the defense of any Third Party Claim, the Indemnifying Party mayhas the right, at its own expense and without limiting its obligation exercisable by written notice to indemnify the Indemnified PartyParty within 15 days after its receipt of a claim notice from the Indemnified Party relating to a Third Party Claim, subject to the limitations set forth in this Section 9.05, to assume the defense of such action with Third-Party Claim and appoint lead counsel for such defense (so long as such lead counsel is reasonably acceptable to the Indemnified Party), in each case at the Indemnifying Party’s expense. In any eventNotwithstanding the foregoing, the Indemnifying Party that has assumed shall have the right to assume the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent only if (i) the Third Party Claim seeks (and continues to seek) solely monetary damages, (ii) the reasonably expected amount of Losses with respect to such Third Party Claim would exceed the maximum coverage under the R&W Insurance Policy, (iii), the Third Party Claim does not relate to or arise in connection with any criminal or quasi criminal proceeding, allegation or investigation, (iv) such Third Party Claim does not relate to or involve a claim asserted directly by or on behalf of a Person that is a customer, supplier or employee of the case of Company, and (v) the Indemnified Party is not seeking recovery against the Indemnifying Party will not be unreasonably withheld for Fraud (the conditions set forth in clauses (i) through (v) are, collectively, the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Party“Litigation Conditions”).

Third Party Claims. If (i) Parent shall give the Seller written notice (a “Third Party Claim Notice,” which may be part of an Indemnification Notice) of any claim, assertion or action by or in respect of a third party commences party, including any action civil, criminal, administrative, regulatory, investigative or makes any demand against arbitral proceeding (a Seller Indemnified Party“Third Party Claim”), as to which a Buyer Indemnified Party, or a SFI Parent Indemnified Party may request indemnification hereunder or as to which the Deductible may be applied as soon as is practicable and in any event within fifteen (as defined below in Section 11(a)15) for which days of the time that such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Parent Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing learns of such action or demandThird Party Claim; provided, however, that if the failure to so notify the Seller shall not affect the rights of the Parent Indemnified Party assumes the defense of the action and fails to provide prompt notice to the Indemnifying Party, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party indemnification hereunder except to the extent that the Seller (as such) is actually prejudiced by such failure materially prejudices the Indemnifying Party’s ability to defend the actionfailure. The Indemnifying Party maySeller shall have the right, at its own expense sole option and without limiting expense, to assume control of the defense of any Third Party Claim that relates to any Losses with respect to which the Seller has acknowledged in writing its obligation to indemnify the Indemnified Partyprovide indemnification for hereunder, participate and to employ counsel of its choosing in the defense of such action with connection therewith, which counsel shall be reasonably satisfactory to Parent; provided, however, that the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation Seller shall not be entitled to indemnify the Indemnified Party, assume the defense of such action any Third Party Claim (unless otherwise consented to in writing by Parent) if (A) the Third Party Claim relates to or arises in connection with counsel reasonably acceptable to an action, suit, proceeding or claim that is criminal in nature or being brought by a Governmental Authority, (B) the Indemnified Party. In any eventThird Party Claim seeks an injunction restricting the conduct of the Company’s business, (C) the Third Party Claim has a reasonable likelihood of resulting in Losses that would exceed the remaining balance of the Escrow Fund, or (D) the Third Party Claim involves as a claimant a customer, client or supplier of Parent, the Party that has assumed the defense Company or any of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Partytheir respective Affiliates.

Third Party Claims. If In the event that any Claim is asserted by a third Person not a party commences any action or makes any demand to this Agreement (a "Third-Party Claim") against a Seller an Indemnified Party, a Buyer Indemnified Party, or a SFI the Indemnifying Party will have twenty (20) days from the date on which the Indemnifying Party receives the Claims Notice with respect to such Third-Party Claim to notify the Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreementwriting whether the Indemnifying Party will, such Indemnified Party will promptly notify at the other party (“Indemnifying Party”) in writing 's sole cost and expense, assume the defense or prosecution of such action or demandthe Third-Party Claim; provided, however, that the Indemnifying Party shall not be entitled to assume the defense of a Third-Party Claim if (A) the Indemnifying Party fails to respond, and confirm in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the Third-Party Claim, to the Claims Notice within twenty (20) calendar days from the date on which the Indemnifying Party receives the Claims Notice, (B) the Indemnifying Party does not use commercially reasonable efforts to diligently defend the Third-Party Claim, (C) there is a material conflict of interest between the Indemnified Party and the Indemnifying Party in the conduct of such defense, (D) the Third-Party Claim alleges fraud or could in the reasonable judgment of counsel to Buyer result in criminal proceedings, (E) the Third-Party Claim seeks injunctive relief or other equitable remedies against the Company or any Indemnified Party, (F) if reasonably requested to do so by the Indemnified Party, the Indemnifying Party fails to have made reasonably adequate provision to ensure the Indemnified Party of the financial ability of the Indemnifying Party to satisfy the full amount of any adverse monetary judgment that may result from such Third-Party Claim, (G) the Third-Party Claim involves a Material Customer of the Indemnified Party or a material customer of any of its Affiliates or (H) the Third-Party Claim is, in the reasonable judgment of the Indemnified Party, likely to result in Losses that will exceed the amount of indemnification that the Indemnifying Party would be liable to pay to the Indemnified Party; provided, however, the Indemnified Party shall obtain the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld) before entering into a settlement of a claim of a Material Customer of the Indemnified Party or a Material Customer of any of the Indemnified Party's affiliates unless the Indemnified Party waives the right of indemnification with respect to the Claim that is settled without such prior written consent. If the Indemnifying Party elects, and is entitled, to assume the defense of a Third-Party Claim, (1) the Indemnified Party will have the right to participate in the defense thereof and employ counsel separate from the counsel employed by the Indemnifying Party, all at the Indemnified Party's sole cost and expense, and (2) the Indemnifying Party shall have the right to pay, settle or compromise such Third-Party Claim without the prior written consent of the Indemnified Party, so long as the Indemnifying Party notifies the Indemnified Party at least five (5) days prior to any such payment, settlement or compromise, and such payment, settlement or compromise (x) includes an unconditional release of the Indemnified Party from all Liability in respect of such Third-Party Claim, (y) does not subject the Indemnified Party to any criminal liability or injunctive relief or other equitable remedy and (z) does not include a statement or admission of fault, culpability or failure to act by or on behalf of the Indemnified Party. If the Indemnified Party assumes the defense of the action and fails to provide prompt notice to Third-Party Claim, the Indemnifying Party, such failure shall not limit in any way the Indemnifying Party’s obligation Party will use commercially reasonable efforts to indemnify cooperate with the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Third-Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified PartyClaim.

Third Party Claims. (a) If a claim by a third party commences is made against any action or makes any demand against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(a)) with respect to which the Indemnified Party intends to seek indemnification hereunder for which such party (“Indemnified Party”) is entitled to indemnification any Loss under this AgreementArticle VIII (a “Third-Party Claim”), such the Indemnified Party will shall promptly notify the other party (“Indemnifying Party”) in writing Party of such action or demand; provided, however, that if claim in accordance with the Indemnified Party assumes the defense of the action and fails to provide prompt notice to the Indemnifying Party, such failure shall not limit procedures set forth in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the actionSection 8.6(a)(i). The Indemnifying Party mayshall have fifteen (15) days (or such lesser time as may be necessary to comply with statutory response requirements for litigation claims that are included in any Third-Party Claim) from receipt of the notice contemplated in Section 8.6(a)(i) to notify the Indemnified Party whether or not the Indemnifying Party shall, at its sole cost and expense, defend the Indemnified Party against such claim. If the Indemnifying Party timely gives notice that it intends to defend the Third-Party Claim, it shall have the right, except as hereafter provided, to defend against, negotiate, settle or otherwise deal with the Third-Party Claim and to be represented by counsel of its own expense choice, and without limiting its obligation to indemnify the Indemnified Party shall not admit any liability with respect thereto or settle, compromise, pay or discharge the same so long as the Indemnifying Party is contesting or defending the same with reasonable diligence and in good faith. Notwithstanding the foregoing, if Parent is the Indemnified Party, so long as the amount of the potential Loss related to the Third Party Claim, together with all other Losses for which indemnification claims are pending, does not exceed an amount equal to twice the amount of funds on deposit in the Indemnity Escrow Account (or in any circumstance in which the indemnification limitations set forth in Section 8.4 are not applicable to such Third Party Claim), then the Stockholders’ Representative shall have the exclusive authority to represent the Company and the Company Subsidiaries with respect to such Third Party Claim (provided that the Indemnified Party may participate in the defense of such action any proceeding with counsel reasonably satisfactory to of its choice and at its expense); provided, further, that the Indemnifying Party may not enter into a settlement of any such Third-Party Claim without the consent of the Indemnified Party, or which consent shall be not unreasonably withheld, unless such settlement requires no more than a monetary payment for which the Indemnified Party is fully indemnified by the Indemnifying Party mayor involves other matters not binding upon the Indemnified Party; and provided, at its own expense further, that, in the event the Indemnifying Party does not agree in writing to accept the defense of, and without limiting its obligation assume all responsibility for (subject to indemnify the limitations set forth in Section 8.4, if applicable), such Third-Party Claim as provided above in this Section 8.7(a), then the Indemnified Party shall have the right to defend against, negotiate, settle or otherwise deal with the Third-Party Claim in such manner as the Indemnified Party deems appropriate, including the settlement of such Third-Party Claim, with the consent of the Indemnifying Party (which consent shall not be unreasonably withheld, delayed or conditioned), and the Indemnified Party shall be entitled to indemnification therefor from the Indemnifying Party to the extent provided under this Article VIII. Notwithstanding the foregoing, if in the reasonable opinion of the Indemnified Party, assume such Third-Party Claim, or the defense litigation or resolution of such action Third-Party Claim, involves an issue or matter that involves a dispute with counsel reasonably acceptable to a significant supplier or customer of the Indemnified Party. In any event, the Indemnified Party that has assumed shall have the right to control the defense or settlement of any such claim or demand and its reasonable costs and expenses shall be included as part of the indemnification obligations of the Indemnifying Party. If the Indemnified Party elects to exercise such right, the Indemnifying Party shall have the right to participate in, but not control, the defense or settlement of such action shall provide claim at its sole cost and expense, provided that the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Indemnified Party shall make not settle any settlement or adjustment such claim without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will which consent shall not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Party).

Third Party Claims. If any Claim Notice identifies a Liability Claim brought by a third party commences any action or makes any demand against (a Seller Indemnified Party“Third Party Claim”), a Buyer Indemnified Partythen the Indemnifying Party has the right, or a SFI Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled exercisable by written notice to indemnification under this Agreement, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing of such action or demand; provided, however, that if the Indemnified Party assumes the defense within fifteen (15) days after receipt of the action and fails to provide prompt notice to the Indemnifying Party, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify a Claim Notice from the Indemnified Party except relating to the extent that such failure materially prejudices the Indemnifying Party’s ability a Third Party Claim in respect of which indemnity may be sought under this Article X, to defend the action. The Indemnifying Party may, at its own expense assume and without limiting its obligation to indemnify the Indemnified Party, participate in conduct the defense of such action Third Party Claim in accordance with the limits set forth in this Agreement, with counsel reasonably satisfactory to the Indemnified Party, or selected by the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any eventNotwithstanding the foregoing, the Indemnifying Party that has assumed shall have the right to assume the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent only if (i) in the case Third Party Claim seeks (and continues to seek) primarily monetary damages; (ii) the reasonably expected amount of Losses with respect to such Third Party Claim would not exceed the maximum indemnification obligation of the Indemnifying Party will not be unreasonably withheld in with respect to such Third Party Claim (after giving effect to expected coverage under the event the settlement or adjustment involves only the payment of money damages by R&W Insurance Policy); (iii) the Indemnifying Party expressly agrees in writing to be fully responsible for all Losses (subject to the limits in this Article X) relating to such Third Party Claim; (iv) the Third Party Claim does not relate to or arise in connection with any criminal or quasi criminal Proceeding, allegation or investigation; (v) such Third Party Claim does not relate to or involve a claim asserted directly by or on behalf of a Person that is or was formerly a supplier, customer, employee or independent contractor of a Acquired Company or that is a party to a Material Contract or a Franchise Agreement (or a Contract entered into after Closing that otherwise would have been a Material Contract or Franchise Agreement hereunder); and (iivi) in the case of the Indemnified Party will is not be unreasonably withheld; provided that seeking recovery under the R&W Insurance Policy with respect to such consent may be withheld if Third Party Claim (the settlement or adjustment involves performance or admission by conditions set forth in clauses (i) through (vi) are, collectively, the Indemnified Party“Litigation Conditions”).

Third Party Claims. If In the event of any claim by a third party commences any action or makes any demand against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI an Indemnified Party (as defined below in Section 11(a)) for which such party indemnification or reimbursement, as applicable, is available hereunder (a “Indemnified PartyThird Party Claim”), the Indemnifying Party shall have the right, exercisable by written notice to Buyer or Securityholder Representative, as applicable, within thirty (30) is entitled days of receipt of a Claims Notice to indemnification under this Agreement, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing of such action or demand; provided, however, that if the Indemnified Party assumes assume and conduct the defense of the action and fails to provide prompt notice to underlying Third Party Claim with counsel selected by the Indemnifying Party; provided that prior to assuming and conducting any such defense, such failure Indemnifying Party shall not limit be required to first acknowledge in any way the Indemnifying Party’s obligation writing to indemnify the Indemnified Party except that such Claim is subject to indemnification under, and subject to the extent terms of, this ARTICLE 10; and provided further, that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Indemnified Party may, may retain separate co- counsel at its own sole cost and expense and without limiting its obligation to indemnify the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory to the Indemnified Partythird party claim. Notwithstanding the foregoing, or the Indemnifying Party may, at its own expense and without limiting its obligation shall not have the right to indemnify the Indemnified Party, assume control of the defense of such action with any Third Party Claim and shall pay the reasonable fees and out- of-pocket expenses of counsel reasonably acceptable to retained by the Indemnified Party. In any event, Party with respect to such Third Party Claim if: (A) the Indemnifying Party that has assumed does not conduct the defense of the third party claim with reasonable diligence; or (B) the Third Party Claim (I) seeks non- monetary, equitable or injunctive relief, (II) alleges violations of criminal law, or (III) includes as the named parties in any such action shall provide Third Party Claim both the other Indemnified Party with copies and the Indemnifying Parties and the Indemnified Party reasonably determines that representation by both parties by the same counsel would be prohibited by applicable codes of all noticesprofessional conduct. If the Indemnifying Party has assumed such defense as provided in this Section 10.4(b), pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld liable for any legal expenses subsequently incurred by any Indemnified Party in connection with the event the settlement or adjustment involves only the payment defense of money damages by such claim. If the Indemnifying Party and (ii) does not assume the defense of any third party claim in the case of accordance with this Section 10.4(b), the Indemnified Party will may continue to defend such claim at the reasonable cost of the Indemnifying Party (subject to the limitations set forth in this ARTICLE 10) and the Indemnifying Party may still participate in, but not be unreasonably withheld; provided that control, the defense of such consent may be withheld if Third Party Claim at the settlement or adjustment involves performance or admission by the Indemnified Indemnifying Party’s sole cost and expense.

Third Party Claims. If a The liability of an Indemnifying Party under this Section 10.2 with respect to Damages arising from claims of any third party commences any action or makes any demand against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI which are subject to the indemnification provided for in this Section 10.2 (“Third Party Claims”) shall be governed by and contingent upon the following additional terms and conditions: If an Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreementshall receive notice or otherwise learn of any Third Party Claim, such the Indemnified Party will promptly notify shall give the other party (“Indemnifying Party”) in writing Party notice of such action Third Party Claim within 10 Business Days of the receipt by the Indemnified Party of such notice or demandawareness; provided, however, that if the Indemnified failure to provide such notice shall not release the Indemnifying Party assumes from any of its obligations under this Section 10.2, except to the extent the Indemnifying Party is materially prejudiced by such failure. The Indemnifying Party shall be entitled to assume and control the defense of such Third Party Claim at the action Indemnifying Party’s expense and fails to provide prompt notice through counsel of the Indemnifying Party’s choice; provided that, as a condition precedent to the Indemnifying Party’s right to assume control of such defense, it must first (1) notify the Indemnified Party in writing within ten (10) days after the Indemnified Party has given notice of such failure shall not limit Third Party Claim that, if the facts related to the Third Party Claim (as alleged in any way the Claim Notice from the Indemnified Party) are true and correct, the Indemnifying Party’s obligation to Party will indemnify the Indemnified Party except to from and against the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense and entirety of any Damages (without limiting its obligation to indemnify any limitations other than those set forth in this Agreement) the Indemnified PartyParty may suffer resulting from, participate arising out of, relating to, in the defense nature of, or caused by such Third Party Claim subject to and in accordance with the terms of such action this Agreement and (2) furnish the Indemnified Party with counsel evidence reasonably satisfactory to the Indemnified Party, or Party that the Indemnifying Party mayhas sufficient resources (including any applicable insurance policies) to defend such Third Party Claim and to satisfy its obligations to the Indemnified Party under this Article X in respect of such Third Party Claim. Notwithstanding the foregoing, at its own expense and without limiting its obligation the Indemnifying Party shall not have the right to indemnify assume or control the defense of a Third Party Claim if such Third Party Claim (I) seeks non-monetary relief, (II) involves criminal or quasi-criminal allegations against Parent or the Surviving Company or any of their respective Representatives, or (III) involves a claim that the Indemnified Party, assume upon advice of competent legal counsel, has determined would be reasonably likely to present a conflict of interest between the Indemnifying Party and the Indemnified Party with respect to the defense of the Third Party Claim (each of the foregoing, an “Exception Claim”). In the event the Indemnifying Party properly exercises its right to undertake any such action defense against any such Third Party Claim as provided above, the Indemnifying Party shall keep the Indemnified Party reasonably informed of all developments that arise in connection with counsel such Third Party Claim, and the Indemnified Party shall reasonably acceptable cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably requested by the Indemnifying Party. The Indemnifying Party shall not, without the written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), (A) settle or compromise any Third Party Claim or consent to the entry of any judgment that does not include an unconditional written release by the claimant or plaintiff of the Indemnified Party from all liability in respect of such Third Party Claim, (B) settle or compromise any Third Party Claim if the settlement imposes equitable remedies or material obligations on the Indemnified Party other than financial obligations for which such Indemnified Party will be indemnified hereunder, or (C) if the Indemnifying Party is an Equity Holder or Equity Holders, amend or modify any Contract on terms adverse to the Company in connection with the settlement or compromise of any Third Party Claim. In any event, the event that the Indemnifying Party that has assumed fails to elect to assume control of the defense of any Third Party Claim in the manner set forth above or such action shall provide Third Party Claim is, or at any time becomes, an Exception Claim, the other Indemnified Party with copies of all notices, pleadings, and other papers filed or served may defend against such Third Party Claim in such action. Neither any manner it may deem appropriate; provided that the Indemnified Party shall make not settle or compromise any settlement or adjustment such Third Party Claim, without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will which consent shall not be unreasonably withheld; provided that such consent may be withheld if the settlement , conditioned or adjustment involves performance or admission by the Indemnified Partydelayed).

Third Party Claims. If a claim by a third party, other than a Tax Matter, is made against any Indemnified Party with respect to which the Indemnified Party intends to seek indemnification hereunder for any Loss under this Article VI, the Indemnified Party shall promptly notify the Responsible Party of such claim. The Responsible Party shall have the right to conduct and control, through counsel of its choosing and at the Responsible Party’s expense (it being understood and agreed that, if Seller is the Responsible Party, such expenses shall not reduce or be paid from the Indemnity Escrow Amount), any third-party commences claim, action, suit or proceeding (a “Third-Party Claim”), and the Indemnified Party shall have the right to participate in such Third-Party Claim at the Indemnified Party’s own expense; provided, that notwithstanding the foregoing, the Responsible Party shall not be entitled to assume control of such Third-Party Claim and the Indemnified Party shall have the right to assume and control such Third-Party Claim at the Responsible Party’s expense (it being understood and agreed that, if Seller is the Responsible Party, such expenses of the Indemnified Party shall constitute Losses and be paid from the Indemnity Escrow Amount) (and the Responsible Party may participate in such Third-Party Claim through counsel of its choosing at the Responsible Party’s expense (it being understood and agreed that, if Seller is the Responsible Party, such expenses shall not reduce or be paid from the Indemnity Escrow Amount)) if (i) such Third-Party Claim could give rise to Losses which are more than two times the remaining balance of the Indemnity Escrow Amount, (ii) the claim for indemnification relates to or arises in connection with any action criminal proceeding, action, indictment, allegation or makes any demand investigation against a Seller the Indemnified Party, a Buyer (iii) such Third-Party Claim seeks an injunction or equitable relief against the Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(a)iv) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing of such action or demand; provided, however, that if the Indemnified Party assumes has been advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the defense of Responsible Party and the action and fails to provide prompt notice to the Indemnifying Indemnified Party, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify (v) the Indemnified Party reasonably believes that an adverse determination with respect to such Third-Party Claim would be detrimental to or injure the Indemnified Party’s reputation or future business prospects in circumstances where indemnification alone would not be an adequate remedy for such detriment or injury, (vi) such Third-Party Claim is asserted by a licensee or prospective licensee of the Indemnified Party, (vii) there are one or more legal defenses available to the Indemnified Party with a reasonable prospect of success which are not available to the Responsible Party or (viii) the Responsible Party elected to conduct such Third-Party Claim and then failed to conduct or withdrew from such Third-Party Claim. Notwithstanding the foregoing, Purchaser shall not have the right to assume and control any Member Litigation against Seller (it being understood and agreed that Purchaser may assume and control Member Litigation to the extent against Purchaser and its Subsidiaries). The failure of any Indemnified Party to give written notice of any Third-Party Claim as provided herein shall not relieve the Responsible Party of its obligations under this Article VI except to the extent that such failure materially prejudices adversely affected the Indemnifying Party’s ability of the Responsible Party to defend the actionor settle such Third-Party Claim. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Responsible Party, participate in conducting the defense of any Third-Party Claim, shall not, except with the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), consent to entry of any judgment or enter into any settlement unless such action with counsel reasonably satisfactory judgment or settlement (1) is entirely indemnifiable by the Responsible Party pursuant to this Article VI, (2) includes as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnified Party, or the Indemnifying Party may, at its own expense of an unconditional release from all Liability and without limiting its obligation to indemnify the Indemnified Party, assume the defense obligations in respect of such action with counsel reasonably acceptable to Third-Party Claim, and (3) does not impose any injunctive relief or other restrictions of any kind or nature on the Indemnified Party. In any event, If the Responsible Party that has assumed is conducting the defense of a Third-Party Claim, the Indemnified Party shall furnish such action information regarding itself or such Third-Party Claim and provide such cooperation as the Responsible Party may reasonably request in writing and as shall provide the other be reasonably required in connection with such defense. The Responsible Party with copies of all notices, pleadingsshall not be obligated to indemnify any Indemnified Party hereunder for, and other papers filed or served in such action. Neither no Indemnified Party shall make be entitled to any recovery hereunder in respect of, any settlement or adjustment consent to entry of any judgment effected without the other Responsible Party’s prior written consent, consent (which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will shall not be unreasonably withheld; provided that such consent may be withheld if the settlement , conditioned or adjustment involves performance or admission by the Indemnified Partydelayed).

Third Party Claims. If any Action (including any Action set forth in Schedules 3.5 or 5.11) is asserted or instigated by a third party commences any action or makes any demand against a Seller Indemnified Party(each, a Buyer Indemnified Party, “Third Party Claim”) against any Person entitled to indemnification pursuant to Sections 11.2 or a SFI Indemnified Party 11.3 (as defined below in Section 11(a)) for which such party (an “Indemnified Party”) is entitled ), and in respect of which such Indemnified Party intends to indemnification seek indemnity under this AgreementArticle XI, such Indemnified Party will shall promptly notify the other party obligated to indemnify such Indemnified Party (the “Indemnifying Party”) in writing of such action or demandThird Party Claim; provided, however, that if the Indemnified Party assumes the defense of the action and fails failure to provide prompt notice to so notify shall not relieve the Indemnifying PartyParty of its obligations hereunder, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the actionParty is actually prejudiced thereby. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in the defense shall have thirty (30) days after receipt of such action with counsel reasonably satisfactory notice to the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, however, that the Indemnifying Party shall permit the Indemnified Party and its counsel to participate in such settlement or defense, provided, however, that the fees and expenses of such counsel shall be borne by such Indemnified Party. In So long as the Indemnifying Party is reasonably contesting any eventsuch Third Party Claim in good faith, the Indemnified Party shall not pay or settle any such claim. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after receipt of the Indemnified Party’s notice of a Third Party Claim of indemnity hereunder that has assumed it elects to undertake the defense of thereof, the Indemnified Party shall have the right to contest, settle or compromise such action Third Party Claim but shall provide not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not except with the other Party with copies consent of all notices, pleadingsother Indemnifying Parties and the Indemnified Party, and other papers filed or served in such action. Neither the Indemnified Party shall make not except with the consent of all of the Indemnifying Parties, (in each case such consent not to be unreasonably delayed, conditioned or withheld), enter into any settlement or adjustment without compromise of any Action, or admit to any liability with respect to any Indemnifying or Indemnified Party, or consent to entry of any judgment that does not include as an unconditional term thereof the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages giving by the Person or Persons asserting such Third Party Claim of an unconditional release of all Indemnifying Parties and Indemnified Parties from all liability with respect to such Third Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified PartyClaim.

Third Party Claims. If a claim by a third party commences any action or makes any demand is made against a Seller Indemnified Partyparty indemnified pursuant to this Article VII (a “Third-Party Claim”), a Buyer Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, and if such Indemnified Party will intends to seek indemnity with respect thereto under this Article VII, the Indemnified Party shall promptly notify the other party (“Indemnifying Party”) in writing the indemnifying party of such action or demandThird-Party Claim; provided, however, that if any failure of the Indemnified Party assumes to notify promptly in writing the defense indemnifying party of the action and fails to provide prompt notice to the Indemnifying Party, such failure Third-Party Claim shall not limit in any way relieve the Indemnifying Party’s obligation indemnifying party of its obligations pursuant to indemnify the Indemnified Party this Article VII except to the extent that the indemnifying party would be actually and materially prejudiced under this Article VII in any way as a result of such failure materially prejudices failure. Except with respect to Third-Party Claims relating to Taxes (which shall be governed by Section 7.5), the Indemnifying Party’s ability indemnifying party shall have the right (but not the obligation) to defend the action. The Indemnifying Party mayundertake, at conduct and control, through counsel of its own expense choosing and without limiting its obligation to indemnify at the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any eventindemnifying party’s expense, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consentdefense thereof, which consent if (i) in the case of the Indemnifying such Third-Party will not be unreasonably withheld in the event the settlement or adjustment Claim involves only the payment of money monetary damages by the Indemnifying Party and does not seek injunctive or other equitable relief, and (ii) the indemnifying party proceeds in good faith, expeditiously and diligently to defend such Third-Party Claim. The Indemnified Party shall cooperate with the case indemnifying party or parties electing to defend any Third-Party Claim in accordance with the immediately preceding sentence, including by providing reasonable access to the books, records and personnel of the Indemnified Party upon reasonable notice and during normal business hours, without unreasonably interfering with the business and operations of the Indemnified Party; provided that the Indemnified Party will not be unreasonably withheld; provided that required to disclose any privileged information of the Indemnified Party or its Affiliates except as required by Applicable Law. An indemnifying party who has elected to defend a Third-Party Claim in accordance herewith shall permit the Indemnified Party or Indemnified Parties to participate in such consent may be withheld if the settlement or adjustment involves performance or admission defense through counsel chosen by the Indemnified Party, provided, that (except as provided below) the fees and expenses of such counsel shall be borne by the Indemnified Party. Without the prior written consent of the Indemnified Party, which consent shall not unreasonably be withheld or delayed, the indemnifying party will not enter into any settlement of any Third-Party Claim. If (i) the Third-Party Claim does not involve a Claim only for monetary damages, (ii) the indemnifying party does not serve on the Indemnified Party by certified mail, postage prepaid, return receipt requested, a written notice of its intention to defend, (iii) the indemnifying party at any time fails to diligently prosecute or defend the Third Party Claim in good faith or does not commence to contest any matter within fifteen (15) Business Days after receipt of written notice from the Indemnified Party of the existence of such matter, (iv) the indemnifying party disputes it is liable to the Indemnified Party for any sum pursuant to this Article VII, or (v) in the reasonable opinion of counsel to the Indemnified Party, a conflict or potential conflict exists between the indemnifying party and the Indemnified Party that would make separate representation advisable, then the Indemnified Party shall have full right and power to defend or otherwise deal with, settle and dispose of the matter (and, subject to Section 7.2, shall be indemnified for the fees and expenses of counsel retained for such purpose); provided, however, that the Indemnified Party or Indemnified Parties will not enter into any settlement or pay (except pursuant to a final court order or judgment) any Third-Party Claim without the prior written consent of the indemnifying party, which consent shall not unreasonably be withheld or delayed. Notwithstanding the foregoing, the Indemnified Party or Indemnified Parties shall have the right to pay or settle any Third-Party Claim without the prior written consent of the indemnifying party, provided that in such event, all relevant Indemnified Parties shall waive any right to indemnity in respect of such paid or settled Third Party Claim by the indemnifying party.

Third Party Claims. If any Claims Notice identifies a Liability Claim brought by a third party commences any action or makes any demand against (a Seller Indemnified Party“Third Party Claim” and together with the Liability Claims, a Buyer Indemnified Partythe “Claims”), or a SFI Indemnified then the Indemnifying Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled has the right, exercisable by written notice to indemnification under this Agreement, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing of such action or demand; provided, however, that if the Indemnified Party assumes the defense within ten days after receipt of the action such Claims Notice, to assume and fails to provide prompt notice to the Indemnifying Party, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in conduct the defense of such action Third Party Claim in accordance with the limits set forth in this Agreement with counsel reasonably satisfactory to the Indemnified Party, or selected by the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In ; provided that (i) the defense of such Third Party Claim by the Indemnifying Party will not, in the reasonable judgment of the Indemnified Party, have a material adverse effect on the Indemnified Party; (ii) the Indemnifying Party has sufficient financial resources, in the reasonable judgment of the Indemnified Party, to satisfy the amount of any eventadverse monetary judgment that is reasonably likely to result; (iii) the Third Party Claim solely seeks (and continues to seek) monetary damages; and (iv) the Indemnifying Party expressly agrees in writing that as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party that may only satisfy and discharge the Third Party Claim in accordance with the limits set forth in this Agreement (the conditions set forth in clauses (i) through (iv) are, collectively, the “Litigation Conditions”). If the Indemnifying Party does not assume the defense of a Third Party Claim in accordance with this Section 7.2(b), then the Indemnified Party may continue to defend the Third Party Claim. Notwithstanding the foregoing, if (A) any of the Litigation Conditions cease to be met or (B) the Indemnifying Party fails to take reasonable steps necessary to defend diligently such Third Party Claim, the Indemnified Party may assume its own defense, and the Indemnifying Party will be liable for all reasonable costs or expenses paid or incurred in connection with such defense. The Indemnifying Party or the Indemnified Party, as the case may be, has the right to participate in (but not control), at its own expense, the defense of any Third Party Claim which the other is defending as provided in this Agreement. The Indemnifying Party, if it has assumed the defense of such action shall provide the other any Third Party with copies of all noticesClaim as provided in this Agreement, pleadingsmay not, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Indemnified Party, consent to a settlement of, or the entry of any judgment arising from, any such Third Party will Claim that (1) does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party a complete release from all liability in respect of such Third Party Claim, (2) grants any injunctive or equitable relief or (3) may reasonably be unreasonably withheld in expected to have a material adverse effect on the event Indemnified Party. The Indemnified Party has the settlement or adjustment involves only right to settle any Third Party Claim, the payment defense of money damages which has not been assumed by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Party.

Third Party Claims. If a third party commences any action or makes any demand Third Party Claim is brought against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI an Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing of such action or demand; provided, however, that if the Indemnified Party assumes the defense of the action and fails to provide prompt it gives notice to the Indemnifying PartyParty of the commencement of such Third Party Claim, such failure shall not limit in any way the Indemnifying Party’s obligation Party will be entitled to indemnify participate in such Third Party Claim and, unless the Indemnified Party except claim involves Taxes, to the extent that such failure materially prejudices it wishes (unless (i) the Indemnifying Party’s ability Party is also a party to such Third Party Claim and the Indemnified Party determines in good faith that joint representation would be inappropriate, or (ii) the Indemnifying Party fails to provide reasonable assurance to the Indemnified Party of its financial capacity to defend the action. The Indemnifying such Third Party mayClaim and provide indemnification with respect to such Third Party Claim), at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in assume the defense of such action Third Party Claim with counsel reasonably satisfactory to the Indemnified PartyParty and, or after notice from the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, Party of its election to assume the defense of such action with counsel reasonably acceptable Third Party Claim, the Indemnifying Party will not, as long as it diligently conducts such defense, be liable to the Indemnified Party. In Party under this Section 10 for any event, the Party that has assumed fees of other counsel or any other expenses with respect to the defense of such action shall provide Third Party Claim, in each case subsequently incurred by the Indemnified Party in connection with the defense of such Third Party Claim, other than reasonable costs of investigation. If the Indemnifying Party with copies assumes the defense of all noticesa Third Party Claim, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) it will be conclusively established for purposes of this Agreement that the claims made in that Third Party Claim are within the case scope of and subject to indemnification; (ii) no compromise or settlement of such claims may be effected by the Indemnifying Party without the Indemnified Party's consent unless (A) there is no finding or admission of any violation of any Regulation or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Party, and (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (iii) the Indemnified Party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an Indemnifying Party of the commencement of any Third Party Claim and the Indemnifying Party does not, within ten business days after the Indemnified Party's notice is given, give notice to the Indemnified Party of its election to assume the defense of such Third Party Claim, the Indemnifying Party will not be unreasonably withheld bound by any determination made in the event the such Third Party Claim or any compromise or settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission effected by the Indemnified Party.

Third Party Claims. If Following the receipt of notice provided by an Indemnified Party pursuant to Section 8.2 of the commencement of any action, suit or proceeding against such Indemnified Party by a third party commences any action or makes any demand against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(a)) for with respect to which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify intends to claim any Loss under this Article 8, an Indemnifying Party shall have the other party (“right to defend such claim, at such Indemnifying Party”) in writing ’s expense and with counsel of such action or demand; provided, however, that if its choice reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the defense of such claim, the action and fails to provide prompt notice to Indemnified Party shall, at the request of the Indemnifying Party, use commercially reasonable efforts to cooperate in such failure shall not limit in any way defense; provided, that the Indemnifying Party shall bear the Indemnified Party’s obligation to indemnify reasonable out-of-pocket costs and expenses incurred in connection with such cooperation. So long as the Indemnifying Party is conducting the defense of such claim as provided in this Section 8.4, the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, may retain separate co-counsel at its own expense and without limiting its obligation to indemnify the Indemnified Party, may participate in the defense of such action with counsel reasonably satisfactory claim, and the Indemnifying Party shall not consent to the entry of any Judgment or enter into any settlement with respect to such claim without the prior written consent of the Indemnified PartyParty unless such Judgment or settlement (A) provides for the payment by the Indemnifying Party of money as sole relief (if any) for the claimant (other than customary and reasonable confidentiality obligations relating to such claim, Judgment or settlement), (B) results in the full and general release of the Indemnified Party from all liabilities arising out of, relating to or in connection with such claim and (C) does not involve a finding or admission of any violation of any law, rule, regulation or Judgment, or the Indemnifying Party mayrights of any Person, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to has no effect on any other claims that may be made against the Indemnified Party. In any event, the event the Indemnifying Party that has assumed does not or ceases to conduct the defense of such action shall provide the other Party with copies of all noticesclaim as so provided, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) the Indemnified Party may defend against, and consent to the entry of any Judgment or enter into any settlement with respect to, such claim in any manner it may reasonably deem to be appropriate, (ii) subject to the case of limitations set forth in Section 8.3, the Indemnifying Party will not be unreasonably withheld in shall reimburse the event Indemnified Party promptly and periodically for the settlement or adjustment involves only the payment reasonable out-of-pocket costs of money damages by defending against such claim, including reasonable attorneys’ fees and expenses against reasonably detailed invoices, and (iii) the Indemnifying Party and (ii) in the case of shall remain responsible for any Losses the Indemnified Party will not be unreasonably withheld; may suffer as a result of such claim to the full extent provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Partyin this Article 8.

Third Party Claims. If In the event that any written claim or demand for which an Indemnifying Party may be liable to any Indemnified Party hereunder is asserted against or sought to be collected from any Indemnified Party by a third party commences any action or makes any demand against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreementparty, such Indemnified Party will promptly notify shall promptly, but in no event later than twenty (20) Business Days following such Indemnified Party’s receipt of such claim or demand (including a copy of any related written third party demand, claim or complaint) (the other party (“Third-Party Claim”), deliver a Claim Notice to the Indemnifying Party”) in writing of such action or demand; provided, however, that if failure to deliver a Claim Notice shall not affect the indemnification provided hereunder except in the event the Indemnifying Party shall have been actually and materially prejudiced as a result of such failure. If a Third-Party Claim is made against an Indemnified Party, the Indemnifying Party assumes shall be entitled to participate therein and, to the extent that the Indemnifying Party shall wish, to assume the defense of the action and fails to provide prompt notice to the Indemnifying Party, such failure thereof (which shall not limit in any way conclusively establish thereby the Indemnifying Party’s obligation responsibility to indemnify the Indemnified Party except in respect of such Third-Party Claim subject to the extent that such failure materially prejudices limitations in this Article 12), and, after notice from the Indemnifying Party’s ability Party to defend the actionIndemnified Party of such election to so assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnified Party for any legal expenses of other counsel or any other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. The Indemnified Party shall cooperate fully with the Indemnifying Party may, and its counsel in the defense against any such Third-Party Claim. The Indemnified Party shall have the right to participate at its own expense and without limiting its obligation to indemnify in the defense of any Third-Party Claim. Neither the Indemnifying Party, on the one hand, nor the Indemnified Party, participate in on the other hand, shall admit liability to, or settle, compromise or discharge any Third-Party Claim without the prior consent of the other Party, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, the Indemnifying Party may settle, compromise or discharge any Third-Party Claim the defense of such action with counsel reasonably satisfactory to the Indemnified Party, or which was assumed by the Indemnifying Party mayif such Third-Party Claim provides only for the payment of monetary damages. In the event the Indemnifying Party elects not to defend any Third-Party Claim, the Indemnified Party shall defend against such Third-Party Claim in good faith and in a commercially reasonable manner at the cost and expense of the Indemnifying Party, and the Indemnifying Party shall have the right to participate in such defense at its own expense and without limiting its obligation expense. Notwithstanding anything to indemnify the Indemnified Partycontrary herein, the Indemnifying Party shall not have the right to assume the defense of such action with counsel reasonably acceptable any Third-Party Claim and the Indemnified Party may elect to assume the defense to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent extent (i) in such Third-Party Claim constitutes a claim for non-monetary, equitable or injunctive relief against the case of Indemnified Party which, if awarded, would be reasonably expected to have a material and adverse impact on the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case business of the Indemnified Party will not (after giving effect to the transactions contemplated by this Agreement); or (ii) if an actual or potential conflict of interest exists or would reasonably be unreasonably withheld; provided that expected to potentially arise (as determined by outside counsel) in respect of the matters subject to such consent may be withheld Third-Party Claim as determined by the conflict-of-interest rules restricting attorney conduct in the applicable jurisdiction if counsel for the settlement or adjustment involves performance or admission by Indemnifying Party were to act as counsel for the Indemnified Party.

Third Party Claims. (a) If a third Proceeding (other than a Proceeding with respect to Taxes, which shall be governed by Section 7.2(c)) is initiated by a Person who is not a party commences any action hereto or makes any demand an Affiliate thereof (a “Third Party Claim”) against a Seller an Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(a)) for which and if such party (“Indemnified Party”) is entitled Person intends to indemnification seek indemnity with respect thereto under this AgreementSection 10.4(a), such Indemnified Party will promptly notify shall within fifteen (15) days give a Notice of Claim to the other party (“Indemnifying Party”; provided that the failure to give such Notice of Claim shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent (and only to the extent) in writing that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnifying Party shall have thirty (30) days after receipt of such action notice to assume the conduct and control, at the expense of the Indemnifying Party, of the settlement or demanddefense thereof, and the Indemnified Party shall cooperate with the Indemnifying Party in connection therewith; provided, however, that if the Indemnifying Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party (the fees and expenses of such counsel shall be borne by such Indemnified Party). Notwithstanding the foregoing, if in the good faith, reasonable opinion of Parent after consultation with counsel, a Third Party Claim against a Purchaser Indemnitee or a Group Company (i) involves an issue or matter which would reasonably be expected, if adversely determined, to adversely affect such Purchaser Indemnitee or Group Company, other than as a result of monetary damages, or (ii) involves a claim that the Representative could not control without there being a conflict of interest (as determined in good faith after consultation with counsel), in each case, Parent shall have the right to control the defense or settlement of any such Third Party Claim. If the Indemnifying Party assumes the conduct of the defense, so long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim. If the Indemnifying Party elects to conduct the defense and settlement of a Third Party Claim, then the Indemnified Party shall have the right to pay or settle such Third Party Claim; provided that in such event it shall waive any right to indemnity by the Indemnifying Party for all Losses related to such claim unless the Indemnifying Party shall have consented to such payment or settlement. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s Notice of Claim hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. If the Indemnifying Party assumes the defense of the action and fails to provide prompt notice to the Indemnifying Partya Third Party Claim, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify shall obtain the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will before entering into any settlement, compromise or discharge of a Third Party Claim unless such settlement, compromise or discharge by its terms (i) obligates the Indemnifying Party to pay the full amount of Losses, if any, in connection with such Third Party Claim, (ii) does not be unreasonably withheld; provided that such consent may be withheld if the settlement impose any injunctive or adjustment involves performance or admission by other equitable relief against the Indemnified PartyParty and (iii) expressly and unconditionally releases the Indemnified Party from all Liabilities with respect to such claim, without prejudice.

Third Party Claims. If Upon providing notice to an Indemnifying Party by an Indemnified Party pursuant to Section 7.2 of the commencement of any action, suit or proceeding against such Indemnified Party by a third party commences any action or makes any demand against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(a)) for with respect to which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify intends to claim any Loss under this Article 7, such Indemnifying Party shall have the other party (“right to defend such claim, at such Indemnifying Party”) in writing ’s expense and with counsel of such action or demand; provided, however, that if its choice reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the defense of such claim, the action and fails to provide prompt notice to Indemnified Party shall, at the request of the Indemnifying Party, use commercially reasonable efforts to cooperate in such failure shall not limit in any way defense; provided, that the Indemnifying Party shall bear the Indemnified Party’s obligation to indemnify reasonable out-of-pocket costs and expenses incurred in connection with such cooperation. So long as the Indemnifying Party is conducting the defense of such claim as provided in this Section 7.4, the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, may retain separate co-counsel at its own expense and without limiting its obligation to indemnify the Indemnified Party, may participate in the defense of such action with counsel reasonably satisfactory claim, and the Indemnifying Party shall not consent to the entry of any Judgment or enter into any settlement with respect to such claim without the prior written consent of the Indemnified PartyParty unless such Judgment or settlement (A) provides for the payment by the Indemnifying Party of money as sole relief (if any) for the claimant (other than customary and reasonable confidentiality obligations relating to such claim, Judgment or settlement), (B) results in the full and general release of the Indemnified Party from all liabilities arising out of, relating to or in connection with such claim and (C) does not involve a finding or admission of any violation of any law, rule, regulation or Judgment, or the Indemnifying Party mayrights of any Person, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to has no effect on any other claims that may be made against the Indemnified Party. In any event, the event the Indemnifying Party that has assumed does not or ceases to conduct the defense of such action shall provide the other Party with copies of all noticesclaim as so provided, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) the Indemnified Party may defend against, and consent to the entry of any reasonable Judgment or enter into any reasonable settlement with respect to, such claim in any manner it may reasonably deem to be appropriate, (ii) subject to the case of limitations set forth in Section 7.3, the Indemnifying Party will not be unreasonably withheld in shall reimburse the event Indemnified Party promptly and periodically for the settlement or adjustment involves only the payment reasonable out-of-pocket costs of money damages by defending against such claim, including reasonable attorneys’ fees and expenses against reasonably detailed invoices, and (iii) the Indemnifying Party and (ii) in the case of shall remain responsible for any Losses the Indemnified Party will not be unreasonably withheld; may suffer as a result of such claim to the full extent provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Partyin this Article 7.

Third Party Claims. If a third party commences any action or makes any demand against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI Upon providing notice to an Indemnifying Party by an Indemnified Party (as defined below in pursuant to Section 11(a)) for 6.2 of the commencement of any Third Party Claim with respect to which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify intends to claim any Loss under this Article 6, such Indemnifying Party shall have the other party (“right to defend such claim, at such Indemnifying Party”) in writing ’s expense and with counsel of such action or demand; provided, however, that if its choice reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the defense of such claim, the action and fails to provide prompt notice to Indemnified Party shall, at the request of the Indemnifying Party, use commercially reasonable efforts to cooperate in such failure shall not limit in any way defense; provided, that the Indemnifying Party shall bear the Indemnified Party’s obligation to indemnify reasonable out-of-pocket costs and expenses incurred in connection with such cooperation. So long as the Indemnifying Party is conducting the defense of such claim as provided in this Section 6.4, the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, may retain separate co-counsel at its own expense and without limiting its obligation to indemnify the Indemnified Party, may participate in the defense of such action with counsel reasonably satisfactory claim. Neither the Indemnified Party nor the Indemnifying Party shall consent to the entry of any Judgment or enter into any settlement with respect to such claim without the prior written consent of the other; provided that the consent of the Indemnified PartyParty shall not be required if such Judgment or settlement (a) provides for the payment by the Indemnifying Party of money as sole relief (if any) for the claimant (other than customary and reasonable confidentiality obligations relating to such claim, Judgment or settlement), (b) results in the full and general release of the Indemnified Party from all liabilities arising out of, relating to or in connection with such claim and (c) does not involve a finding or admission of any violation of any law, rule, regulation or Judgment, or the Indemnifying Party mayrights of any Person, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to has no effect on any other claims that may be made against the Indemnified Party. In any event, the Party that has assumed Any party’s assumption of the defense of any Third Party Claim can be made with a reservation of the right to contest the right of Indemnified Party to be indemnified with respect to such action shall provide the other Party with copies of all notices, pleadingsclaim under this Agreement, and other papers filed or served in such action. Neither Party shall make a party’s consent to any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of a Third Party Claim shall not be used as evidence of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case truth of the Indemnified allegations in any Third Party will Claim or the merits of such Third Party Claim. Furthermore, the existence of any Third Party Claim shall not be unreasonably withheld; provided that such consent may be withheld if the settlement create a presumption of any breach by a party to this Agreement of any of its representations, warranties or adjustment involves performance or admission by the Indemnified Partycovenants set forth in this Agreement.

Third Party Claims. If a any third party commences asserts a Claim (a “Third-Party Claim”) against any action Indemnified Party that could reasonably be expected to give rise to a right on the part of the Indemnified Party to indemnification under this Article 11, the Indemnified Party shall give notice of such Third-Party Claim to the Sellers (in the case of a Third-Party Claim asserted against a Purchaser Indemnified Party) or makes any demand the Purchaser (in the case of a Third-Party Claim asserted against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party ) as soon as practicable (as defined below but in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing no event later than ten Business Days after receiving notice of such action Third-Party Claim or demandotherwise acquiring actual knowledge of the assertion thereof), and the Indemnifying Party shall have the right to assume the defense of such Third-Party Claim; provided, however, that if the Indemnified Party assumes the defense of the action and fails failure to provide prompt notice to so notify the Indemnifying Party, such failure shall Party will not limit in any way relieve the Indemnifying Party’s obligation Party from any liability that the Indemnifying Party may have hereunder with respect to indemnify the Indemnified such Third-Party Claim, except to the extent that such failure materially prejudices the Indemnifying Party’s ability Party is prejudiced as a result of such failure, including where the failure to defend so notify the action. The Indemnifying Party mayresults in Losses to the Indemnifying Party or the forfeiture of substantive rights or defenses that would otherwise be available in the defense of such Third-Party Claim, at its own expense and without limiting its obligation the Indemnifying Party shall have the right to indemnify assume the defense of such Third-Party Claim; provided, that in the case of Claim arising under Sections 11.2(a), the Indemnifying Party consults with the Indemnified Party with respect to the handling of such Third-Party Claim. Notwithstanding the foregoing, if (i) criminal penalties are asserted against the Indemnified Party in the Proceeding giving rise to such Third-Party Claim, or (ii) the Indemnifying Party and any Indemnified Party are both parties to the Proceeding giving rise to the Third-Party Claim and a conflict of interest exists between the Indemnifying Party and the Indemnified Party that has the potential of materially and adversely affecting the interests of the Indemnified Party in the defense of such Proceeding, other than any conflict of interest arising out of the parties’ relationship under this Agreement, then the Indemnified Party may employ counsel reasonably satisfactory to the Indemnifying Party to represent or defend it against any such Third-Party Claim on the terms and subject to the conditions and limitations in the immediately following sentence. If the Indemnifying Party elects not to assume the defense or fails to assume the defense within 30 days after the Indemnified Party provides notice to the Indemnifying Party of such Third-Party Claim, then the Indemnified Party may employ counsel reasonably satisfactory to the Indemnifying Party to represent or defend it against any such Third-Party Claim, and, subject to Section 11.4, the reasonable out of pocket attorney’s fees incurred by the Indemnified Party for such counsel will be included in the Indemnified Party’s Losses; provided, however, that the Indemnified Party’s Losses shall not, in connection with any Proceeding or separate but substantially similar Proceedings arising out of the same general allegations, include the fees and expenses of more than one separate firm of attorneys at any time for all Indemnified Parties, except to the extent that local counsel, in addition to its regular counsel, is required in order to effectively defend against the Third-Party Claim. If the Indemnifying Party does assume the defense of a Third-Party Claim, the Indemnified Party shall have the right to participate in the defense of such action Third-Party Claim at such Indemnified Party’s sole expense. If the Indemnified Party retains its own counsel, the Indemnifying Party shall reasonably cooperate in providing information to and consulting with counsel reasonably satisfactory to the Indemnified Party about the Third-Party Claim. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will shall not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Party.,

Third Party Claims. If An Indemnified Party that desires to seek ------------------ indemnification under any part of this Article IX with respect to any actions, suits or other administrative or judicial proceedings (each, an "Action") that may be instituted by a third party commences any action or makes any demand against shall ------ give each Indemnitor prompt notice of a Seller third party's institution of such Action and tender defense of such Action to the Indemnitor, with counsel reasonably satisfactory to such Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing of such action or demand; provided, however, that if the such Indemnified Party assumes shall have the right to participate at its own expense in the defense of such Action; and provided, further, that the action Indemnitor shall not consent to the entry of any judgment or enter into any settlement, that (x) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a complete release therefrom, or (y) provides for injunctive or other non-monetary relief affecting the Indemnified Party, except with the written consent of such Indemnified Party (which consent shall not be unreasonably withheld, delayed or conditioned). The Indemnified Party shall render all assistance and fails cooperation to provide the Indemnitor (at Indemnitor's sole expense) which the Indemnitor may request in defense of any such Action including, without limitation, the making of witnesses and documents available for depositions, interrogatories and court proceedings. Any failure to give prompt notice and to tender the Indemnifying Party, such failure defense of an Action pursuant to this Section 9.8 shall not limit in any way the Indemnifying bar an Indemnified Party’s obligation 's right to indemnify the Indemnified Party claim indemnification under this Article IX, except to the extent that an Indemnitor shall have been harmed by such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Partyfailure.

Third Party Claims. If Except with respect to the Xxxxxxxx Claim as described in Section 7.3(c), all claims for indemnification made under this Agreement resulting from, related to or arising out of a third third-party commences any action or makes any demand claim against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI an Indemnified Party (as defined below a “Third Party Claim”) shall be made in Section 11(a)) for which such party accordance with the following procedures. A person entitled to indemnification under this ARTICLE VII (an “Indemnified Party”) with respect to a Third Party Claim shall give prompt written notification to the person from whom indemnification is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify sought (the other party (“Indemnifying Party”) in writing of such action or demand; provided, however, that if the Indemnified Party assumes the defense of the action and fails commencement of any action, suit or proceeding relating to provide prompt notice a third-party claim for which indemnification may be sought or, if earlier, upon the assertion of any such claim by a third party; provided that the failure to so notify the Indemnifying Party, such failure Party promptly shall not limit in any way relieve the Indemnifying Party’s obligation to indemnify the Indemnified Party of its or his liabilities hereunder except to the extent that such failure materially prejudices shall have harmed or prejudiced the Indemnifying Party’s ability to defend . Within thirty (30) days after delivery of such notification, the action. The Indemnifying Party may, at its own expense and without limiting its obligation upon written notice thereof to indemnify the Indemnified Party, participate in assume control of the defense of such action action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party, or ; provided that the Indemnifying Party mayshall only be permitted to assume such defense so long as (i) such Third Party Claim involves only monetary damages and does not seek an injunction or other equitable relief (and does not involve criminal or quasi criminal allegations or a claim to which the Indemnified Party reasonably believes an adverse determination would be detrimental to or injure the Indemnified Party’s reputation or future business prospects), (ii) the aggregate amount claimed pursuant to such Third Party Claim does not exceed two times (2X) the then-remaining amount of the General Cap, (iii) the Indemnifying Party and the Indemnified Party do not have conflicting interests with respect to such action, suit, proceeding or claim and (iv) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense expense; provided that if the Indemnifying Party assumes control of such defense and without limiting its obligation to indemnify the Indemnified PartyParty reasonably concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such action, suit, proceeding or claim, the Indemnified Party may immediately assume control of the defense (to the extent permitted by judge or arbitrator) and the reasonable fees and expenses of such action with counsel reasonably acceptable to the Indemnified PartyParty solely in connection therewith shall be considered “Damages” for purposes of this Agreement; provided, however, that in no event shall the Indemnifying Party be responsible for the fees and expenses of more than one counsel for all Indemnified Parties. In any eventThe Party controlling such defense shall keep the other Party advised of the status of such action, the Party that has assumed suit, proceeding or claim and the defense of such action thereof and shall provide consider recommendations made by the other Party with copies respect thereto. The Indemnifying Party shall not agree to any settlement of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement , suit, proceeding or adjustment without the other Party’s prior written consent, which consent claim that (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only provides for any relief other than the payment of money monetary damages by or that provides for the Indemnifying Party and (ii) in the case payment of monetary damages as to which the Indemnified Party will not be indemnified in full pursuant to Section 7.1 or 7.2, as applicable, (ii) does not include a complete release of the Indemnified Party from all Liability with respect to such claim with prejudice, or (iii) that imposes any liability or obligation on the Indemnified Party, without the prior written consent of the Indemnified Party. If the Indemnified Party assumes the defense of any action, suit, proceeding or claim which the Indemnifying Party is not entitled to assume pursuant to this Section 7.3(a) (other than the Xxxxxxxx Claim), such Indemnified Party shall not be entitled to agree to any settlement of any such action, suit, proceeding or claim that imposes any liability or obligation on Sellers, without the prior written consent of Sellers, not to be unreasonably withheld; provided withheld or delayed. In the event that such consent may be is unreasonably withheld if the settlement or adjustment involves performance or admission by delayed, the Indemnified PartyParty may settle such action, suit, proceeding or claim in a manner that would impose a liability on Sellers, provided that the liability with respect to such settlement shall be subject to the limitations set forth in Section 7.5 to the extent applicable.

Third Party Claims. If any Claims Notice identifies a Liability Claim brought by a third party commences any action or makes any demand against (a Seller “Third Party Claim” and together with the Liability Claims, the “Claims”), then the Indemnifying Party has the right, exercisable by written notice to the Indemnified Party within ten days after receipt of such Claims Notice, to assume and conduct the defense of such Third Party Claim in accordance with the limits set forth in this Agreement with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing of such action or demand; provided, however, that if (i) the defense of such Third Party Claim by the Indemnifying Party will not, in the reasonable judgment of the Indemnified Party, have a material adverse effect on the Indemnified Party; (ii) the Indemnifying Party has sufficient financial resources, in the reasonable judgment of the Indemnified Party, to satisfy the amount of any adverse monetary judgment that is reasonably likely to result; (iii) the Third Party Claim solely seeks (and continues to seek) monetary damages; and (iv) the Indemnifying Party expressly agrees in writing that as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party may only satisfy and discharge the Third Party Claim in accordance with the limits set forth in this Agreement (the conditions set forth in clauses (i) through (iv) are, collectively, the “Litigation Conditions”). If the Indemnifying Party does not assume the defense of a Third Party Claim in accordance with this Section 10.2(b), then the Indemnified Party assumes may continue to defend the defense Third Party Claim. Notwithstanding the foregoing, if (i) any of the action and Litigation Conditions cease to be met or (ii) the Indemnifying Party fails to provide prompt notice take reasonable steps necessary to the Indemnifying Partydefend diligently such Third Party Claim, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent that such failure materially prejudices may assume its own defense, and the Indemnifying Party’s ability Party will be liable for all reasonable costs or expenses paid or incurred in connection with such defense, subject to defend the actionSection 10.3. The Indemnifying Party mayor the Indemnified Party, as the case may be, has the right to participate in (but not control), at its own expense and without limiting its obligation to indemnify the Indemnified Partyexpense, participate in the defense of such action with counsel reasonably satisfactory to any Third Party Claim which the Indemnified other is defending as provided in this Agreement. The Indemnifying Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that if it has assumed the defense of such action shall provide the other any Third Party with copies of all noticesClaim as provided in this Agreement, pleadingsmay not, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consentconsent of the Indemnified Party, which consent to a settlement of, or the entry of any judgment arising from, any such Third Party Claim that (i) does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party a complete release from all liability in respect of such Third Party Claim, (ii) grants any injunctive or equitable relief or (iii) may reasonably be expected to have a material adverse effect on the case Indemnified Party. The Indemnified Party has the right to settle any Third Party Claim, the defense of the Indemnifying Party will which has not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages been assumed by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Party.

Third Party Claims. If a third party commences (a) The Indemnifying Party shall have the right to participate in the negotiation, settlement or defence of any action or makes any demand against a Seller Indemnified PartyThird Party Claim and to retain counsel to act on its behalf, a Buyer Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify provided that the other party (“Indemnifying Party”) in writing fees and disbursements of such action or demand; provided, however, that if the Indemnified Party assumes the defense of the action and fails to provide prompt notice to counsel shall be paid by the Indemnifying Party. Subject to its ongoing compliance with Section 9.10, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify Party shall have the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party mayright, at its own expense expense, to assume control of the negotiation, settlement or defence of any Third Party Claim so long as: (i) the Third-Party Claim involves principally money damages and without limiting its obligation to indemnify does not seek an injunction or other equitable relief against the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory to (ii) the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense has not been advised in writing by counsel that representation of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by both the Indemnifying Party and the Indemnified Party by the same counsel in connection with the defence of the Third Party Claim would be inappropriate due to actual or potential differing interests between them (iisuch as the availability of different defences), (iii) the Third Party Claim does not relate to or otherwise arise in connection with any criminal or regulatory enforcement Action, (iv) settlement of or an adverse judgment with respect to the case Third Party Claim would reasonably be expected to have a materially adverse impact on the operations of the business or the public image and goodwill of the Indemnified Party will not be unreasonably withheldor any of its Affiliates and (v) the Indemnifying Party conducts the defence of the Third Party Claim actively and diligently; and, if the Indemnifying Party assumes control, it shall reimburse the Indemnified Party for all of the Indemnified Party's reasonable out-of-pocket expenses prior to the time the Indemnifying Party assumed control. If the Indemnifying Party elects to assume such control, the Indemnified Party shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim and to retain counsel to act on its behalf, provided that the fees and disbursements of such consent may counsel shall be withheld if the settlement or adjustment involves performance or admission paid by the Indemnified Party unless the named parties to any Action include both the Indemnifying Party and the Indemnified Party and representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to actual or potential differing interests between them (such as the availability of different defences), in which case the Indemnifying Party shall be responsible for the reasonable fees and disbursements of the Indemnified Party's counsel.

Third Party Claims. If In the event of the assertion, in writing, of a third third-party commences claim or dispute which, if adversely determined would entitle any action party or makes parties to seek indemnification hereunder (the “Indemnified Parties”), the Indemnified Parties shall promptly notify the party or parties required to provide indemnification hereunder (the “Indemnifying Parties”), in writing, provided, however, that any demand against a Seller delay in providing or failure to provide such notification shall not affect the right of the Indemnified Parties to indemnification hereunder except to the extent the Indemnifying Parties are materially prejudiced by the delay or failure. The Indemnifying Parties may elect, by written notice to Indemnified Party, a Buyer to assume and direct, at their sole expense, the defense of any such third-party claim, and may, at their sole expense, retain counsel in connection therewith, provided that such counsel is reasonably acceptable to Indemnified Party. After the assumption of such defense by either or both of the Indemnifying Parties with counsel reasonably acceptable to Indemnified Party, and for so long as either or both of the Indemnifying Parties conduct such defense on a SFI diligent and timely basis, the Indemnifying Parties shall not be responsible for the payment of legal fees incurred thereafter by the Indemnified Party or Parties (as defined below who may, however, continue to participate in Section 11(athe defense thereof with separate counsel)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing of such action or demand; provided, however, that if that, the Indemnifying Parties shall be responsible for paying the fees and expenses of one separate counsel for the Indemnified Party assumes Parties in each jurisdiction in which any third-party claim is brought or is pending if counsel for such Indemnified Parties in good faith determines or advises that either or both of the Indemnifying Parties and any of the Indemnified Parties have conflicting positions with respect to such third-party claim or dispute or that either or both of the Indemnifying Parties, on the one hand, or any of the Indemnified Parties, on the other hand, have defenses not available to the other. If either or both of the Indemnifying Parties fail to and until either or both of the Indemnifying Parties do undertake the defense of any such third party claim or dispute in accordance with the action and fails to provide prompt notice to provisions hereof, or if either or both of the Indemnifying PartyParties discontinue the diligent and timely conduct thereof, any of the Indemnified Parties may undertake such failure shall not limit in any way defense and the Indemnifying Party’s obligation to indemnify Parties shall be responsible, on a joint and several basis, for reimbursing the Indemnified Party except to Parties for their legal fees and expenses in connection therewith as and when such legal fees and expenses are incurred by them. No party hereto may settle or compromise any such third-party claim or dispute without the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in the defense prior written consent of such action with counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consentparties hereto, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will shall not be unreasonably withheld; provided , except that such consent may be withheld if the settlement Indemnified Party or adjustment involves performance or admission by any other of the Indemnified PartyParties may do so if either or both of the Indemnifying Parties have not assumed the defense thereof in accordance with this Section 12.4 or either or both of the Indemnifying Parties have not notified Indemnified Party or any of the other Indemnified Parties that either or both of the Indemnifying Parties are disputing, or have breached, their obligations hereunder to indemnify any of the Indemnified Parties with respect to such third-party claim.

Third Party Claims. (i) If an Indemnified Party gives notice to an Indemnifying Party of the assertion of a Relevant Claim that is related to a claim brought by a third party commences (any action or makes any demand against a Seller Indemnified Partysuch claim, a Buyer Indemnified Party“Third-Party Claim”), or a SFI Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing of such action or demand; provided, however, that if the Indemnified Party assumes the defense of the action and fails to provide prompt notice to the Indemnifying PartyParty shall have the right, such failure shall not limit in any way the Indemnifying Party’s obligation its discretion, to indemnify the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in the defense of such action Third-Party Claim and, to the extent that it wishes (unless there is or would reasonably be expected to be a conflict of interest between the Indemnified Party and the Indemnifying Party in connection with the defense of such Third Party Claim), to assume the defense of such Third-Party Claim with counsel reasonably satisfactory to the Indemnified Party, or . After notice from the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, Party of its election to assume the defense of such action with counsel reasonably acceptable Third-Party Claim, the Indemnifying Party shall not be liable to the Indemnified Party. In Party under this Section 6.02 for any event, the Party that has assumed fees of other counsel or any other expenses with respect to the defense of such action Third-Party Claim, in each case subsequently incurred by the Indemnified Party in connection with the defense of such Third-Party Claim, other than reasonable costs of investigation incurred by the Indemnified Party in connection with its cooperation with a request by the Indemnifying Party. If the Indemnifying Party assumes the defense of a Third-Party Claim, no compromise or settlement of such Third-Party Claims may be effected by the Indemnifying Party without the Indemnified Party’s consent (which shall provide not be unreasonably withheld) unless (1) the other Party with copies of all notices, pleadings, sole relief provided is monetary damages that are paid in full by the Indemnifying Person and other papers filed or served in such action. Neither (2) the Indemnified Party shall make have no liability with respect to any compromise or settlement or adjustment of such Third-Party Claims effected without its consent. If notice is given to an Indemnifying Party of the other assertion of any Third-Party Claim and the Indemnifying Party does not, within sixty (60) days after the Indemnified Party’s prior written consentnotice is given, which consent (i) in give notice to the case Indemnified Party of its election to assume the defense of such Third-Party Claim, the Indemnifying Party will not be unreasonably withheld bound by any determination made in the event the such Third-Party Claim or any compromise or settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission effected by the Indemnified Party.

Third Party Claims. If a. In the case of a claim, action, suit or proceeding by a third party commences any action or makes any demand against (a Seller “Third Party Claim”) as to which indemnification is sought by an Indemnified Party, a Buyer Indemnified Partyexcept as provided in Sections 7.4(c) and (d), the Responsible Party shall have the right within 10 days after receipt of the Claim Notice to assume the conduct and control of the settlement or a SFI defense thereof through counsel selected by the Responsible Party and reasonably acceptable to the Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified at the expense of the Responsible Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify . If the other party (“Indemnifying Party”) in writing of such action or demand; provided, however, that if the Indemnified Responsible Party assumes the defense of the action and fails to provide prompt notice to the Indemnifying Partya Third Party Claim, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except shall have the right to participate in (but not control) such defense through counsel chosen by such Indemnified Party, provided that the extent that fees and expenses of such failure materially prejudices counsel shall be borne by such Indemnified Party. So long as the Indemnifying Party’s ability Responsible Party is reasonably contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim unless the Indemnified Party waives in writing any right to defend indemnification by the actionResponsible Party with respect to such claim. The Indemnifying Responsible Party mayshall not, at its own expense and without limiting its obligation to indemnify except with the prior written consent of the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make enter into any settlement or adjustment without the other Party’s prior written consentconsent to entry of any judgment, which consent (i) in the case of the Indemnifying Party will shall not be unreasonably withheld in the event the provided (i) such settlement or adjustment involves only the payment judgment does not involve a finding or admission of money damages a violation of Applicable Law by the Indemnifying Indemnified Party and (ii) the sole relief provided is money damages which shall be paid fully by the Responsible Party. If the Responsible Party does not assume the conduct and control of the settlement or defense of such claim in the case of accordance with this Section 7.4(a), the Indemnified Party will not be unreasonably withheld; provided that may defend against such consent claim in such manner as it reasonably deems appropriate.If the Responsible Party assumes the defense of a Third Party Claim, and for so long as the Responsible Party continues to contest such claim in good faith, Indemnified Party shall cooperate in all reasonable respects with the Responsible Party and its attorneys in the investigation, trial and defense of any Third Party Claim and any appeal arising therefrom and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals as may be withheld if reasonably requested in connection therewith. Such cooperation shall include access during normal business hours being afforded to the settlement or adjustment involves performance or admission Responsible Party and its agents and representatives to, and reasonable retention by the Indemnified PartyParty of, records and information which have been identified by the Responsible Party as being reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Parties shall cooperate with each other in any notifications to insurers.

Third Party Claims. If (i) In the event that any of the Indemnified Parties is made a third defendant in or party commences to any action or makes proceeding, judicial or administrative, instituted by any demand against a Seller Indemnified Partythird party for the liability or the costs or expenses of which are Shareholder Losses or Purchaser Losses, a Buyer Indemnified Party, or a SFI Indemnified Party as the case may be (as defined below in Section 11(a)) for which any such third party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing of such action or demand; providedproceeding being referred to as a “Third Party Claim”), however, that if the Indemnified Party assumes shall give the defense of the action and fails to provide Indemnifying Party prompt notice thereof. The failure to the Indemnifying Party, give such failure notice shall not limit in any way affect the Indemnifying Indemnified Party’s obligation ability to indemnify the Indemnified Party seek reimbursement except to the extent that such failure has materially prejudices and adversely affected the Indemnifying Party’s ability to defend the actionsuccessfully such Third Party Claim. The Indemnifying Party mayshall be entitled to contest and defend such Third Party Claim; provided, at its own expense and without limiting its obligation to indemnify however, that the Indemnifying Party (A) has a reasonable basis for concluding that such defense may be successful, (B) consults with the Indemnified Party, participate in Party with respect to the defense handling of such action with counsel reasonably satisfactory Third Party Claim, (C) diligently contests and defends such Third Party Claim, and (D) unconditionally acknowledge that such Third Party Claim constitutes a Loss of the Indemnified Party for which such Indemnified Party is entitled to indemnification under this Article XI. Notice of the intention to contest and defend the Third Party Claim shall be given by the Indemnifying Party to the Indemnified Party, Party on or before the 20th Business Day after the Indemnified Party gives notice to the Indemnifying Party mayof such Third Party Claim (but, in all events, at its own expense least five Business Days prior to the date that an answer to such Third Party Claim is due to be filed). Such contest and without limiting its obligation to indemnify defense shall be conducted by reputable attorneys employed by the Indemnified Party, assume the defense of such action with counsel Indemnifying Party that are reasonably acceptable to the Indemnified Party. In The Indemnified Party shall be entitled at any eventtime, at its own cost and expense (which cost and expense shall not constitute a Loss unless such expense is incurred at the request of the Indemnifying Party, the Indemnified Party reasonably determines that has assumed the Indemnifying Party is not adequately representing or, because of a conflict of interest, may not adequately represent, any interests of the Indemnified Party), to participate in such contest and defense and to be represented by attorneys of its or their own choosing. If the Indemnified Party elects to participate in such defense, the Indemnified Party shall cooperate with the Indemnifying Party in the conduct of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such actiondefense. Neither the Indemnified Party shall make nor the Indemnifying Party may concede, settle or compromise any settlement or adjustment Third Party Claim without the consent of the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party fails or is not entitled to contest and (ii) in the case of defend a Third Party Claim, the Indemnified Party will not shall be unreasonably withheld; provided that entitled to contest, defend and settle such consent Third Party Claim, and pursue its indemnification rights hereunder and whatever other legal remedies may be withheld if available to enforce its rights under this Article XI at the settlement or adjustment involves performance or admission by cost and expense of the Indemnified Indemnifying Party.

Third Party Claims. If An Indemnified Party shall give written notice to any Indemnifying Party within 30 days after it has actual knowledge of commencement or assertion of any action, proceeding, demand, or claim by a third party commences any action or makes any demand against a Seller Indemnified Party(collectively, a Buyer Indemnified Party, or a SFI Indemnified "Third Party (as defined below Claim") in Section 11(a)) for respect of which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify may seek indemnification under Section 5.1. Such notice shall state the other party (“Indemnifying Party”) in writing nature and basis of such action or demand; provided, however, Third Party Claim and the events and the amounts thereof to the extent known. Any failure to notify an Indemnifying Party shall not relieve such Indemnifying Party from any liability that if the it may have to such Indemnified Party assumes the defense of the action and fails to provide prompt notice to the Indemnifying Partyunder this Article 5, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent that the failure to give such failure notice materially and adversely prejudices the such Indemnifying Party’s ability to defend the . In case any such action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the proceeding or claim is brought against an Indemnified Party, so long as (a) the Indemnifying Party has acknowledged in writing to the Indemnified Party that it is liable to the Indemnified Party for such Third Party Claim pursuant to this Section 5.3, (b) in the reasonable judgment of the Indemnified Party a conflict of interest between it and the Indemnifying Party does not exist in respect of such Third Party Claim and (c) in the reasonable judgment of the Indemnified Party such Third Party Claim does not entail a material risk of criminal penalties or civil fines or non-monetary sanctions being imposed on the Indemnified Party (a "Third Party Penalty Claim") (the forgoing conditions being referred to as the "Control Conditions"), the Indemnifying Party shall be entitled to participate in and assume the defense of such action thereof, with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party, and after notice from the Indemnifying Party to the Indemnified Party of its election so to assume the defense thereof, the Indemnifying Party shall not be liable to such Indemnified Party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof other than as expressly provided below in this Section 5.3; provided, that nothing contained herein shall permit Seller to control or participate in any Tax contest or dispute involving Purchaser or any Affiliate of Purchaser, or permit Purchaser to control or participate in any Tax contest or dispute involving Seller or any Affiliate of Seller other than the Company. In the event that (i) the Indemnifying Party advises an Indemnified Party that it will not contest a claim for indemnification hereunder, (ii) the Indemnifying Party fails, within 30 days of receipt of any indemnification notice to notify, in writing, such Indemnified Party of its election, to defend, settle or compromise, at its sole cost and expense, any such Third Party Claim (or discontinues its defense at any time after it commences such defense) or (iii) in the reasonable judgment of the Indemnified Party, a conflict of interest between it and the Indemnifying Party exists in respect of such Third Party Claim or the Indemnifying action or claim is a Third Party Penalty Claim, then the Indemnified Party may, at its own expense option, defend, settle or otherwise compromise or pay such action or claim or Third Party Claim, and without limiting its obligation to indemnify the Indemnifying Party shall be liable for and shall reimburse the Indemnified Party promptly and periodically for the Indemnified Party's reasonable costs and expenses arising out of the defense, assume the defense settlement or compromise of any such action with counsel reasonably acceptable to the Indemnified Partyaction, claim or proceeding. In any event, unless and until the Indemnifying Party that has assumed elects in writing to assume and does so assume the defense of any such claim, proceeding or action, the Indemnifying Party shall be liable for the Indemnified Party's reasonable costs and expenses arising out of the defense, settlement or compromise of any such action, claim or proceeding. The Indemnified Party shall cooperate fully with the Indemnifying Party in connection with any negotiation or defense of any such action or claim by the Indemnifying Party. The Indemnifying Party shall provide keep the other Indemnified Party fully apprised at all times as to the status of the defense or any settlement negotiations with copies respect thereto. If the Indemnifying Party elects to defend any such action or claim, then the Indemnified Party shall be entitled to participate in such defense with counsel of all noticesits choice at its sole cost and expense. If any of the Control Conditions is not satisfied or becomes unsatisfied, pleadings(x) the Indemnified Party may defend against, and other papers filed consent to the entry of any judgment or served enter into any settlement with respect to, such Third Party Claim in any manner it may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (y) the Indemnifying Party will reimburse the Indemnified Party promptly and periodically for the reasonable costs of defending against such actionThird Party Claim (including reasonable consultant, attorney and expert witness fees, disbursements and expenses), and (z) the Indemnifying Party will remain responsible for any losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by such Third Party Claim to the fullest extent provided in this Article 5. Neither The Indemnifying Party and the Indemnified Party shall make cooperate fully with each other in connection with the defense, negotiation or settlement of any settlement such legal proceeding, claim or adjustment demand. Notwithstanding anything in this Section 5.3 to the contrary, the Indemnifying Party shall not, without the other Indemnified Party’s 's prior written consent, settle or compromise any claim or consent to entry of judgment in respect thereof which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement imposes any criminal liability or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of civil fine or sanction or equitable remedy on the Indemnified Party will or which does not be unreasonably withheld; provided that such consent may be withheld if include, as an unconditional term thereof, the settlement giving by the claimant or adjustment involves performance or admission by the plaintiff to the Indemnified Party, a release from all liability in respect of such claim.

Third Party Claims. (a) If a the facts giving rise to any indemnification provided for in this Agreement involve any actual or threatened claim or demand by any third party commences ("Third Party Claim") against any action or makes any demand against a Seller Indemnified PartyIndemnitee, a Buyer Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing Indemnitee shall give prompt written notice of such action or demand; provided, however, that if the Indemnified Third Party assumes the defense of the action and fails to provide prompt notice Claim to the Indemnifying PartyIndemnitor. Failure or delay in notifying the Indemnitor will not relieve the Indemnitor of any liability it may have to the Indemnitee, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent that such failure materially prejudices or delay causes actual harm to the Indemnifying Party’s ability Indemnitor with respect to such claim. The Indemnitor will be entitled, upon its election, by written notice given to the Indemnitee within thirty (30) days after the date on which the Indemnitee has given notice of such Third Party Claim to the Indemnitor (without prejudice to the right of such Indemnitee to participate at its expense through counsel of its own choosing), to assume the defense or prosecution of such claim and any litigation resulting therefrom (a "Third Party Defense") at its expense and through counsel of its own choosing reasonably acceptable to the Indemnitee; provided, however, that the Indemnitor shall not have the right to assume the Third Party Defense (i) if any such claim seeks, in addition to or in lieu of monetary damages, any injunctive or other equitable relief, or (ii) if, in the reasonable opinion of the Indemnitee and its counsel, there is or could reasonably be expected to be a conflict of interest with respect to a third party between the position of the Indemnitor and the Indemnitee, (iii) the Indemnitor fails to provide reasonable assurance to the Indemnitee of its financial capacity to defend such proceeding and provide indemnification in accordance with the provisions of this Agreement with respect to such proceeding, or (iv) if the Third Party Claim, when aggregated with all other claims pending against the Indemnity Escrow Fund, exceeds the then current value of the Escrow Shares remaining in the Indemnity Escrow Fund based on $198.75 as the deemed value of an Escrow Share; and provided further, that if, by reason of the claim of such third party a lien, attachment, garnishment or execution is placed upon any of the property or assets of such Indemnitee, the Indemnitor, if it desires to exercise its right to assume such Third Party Defense, must furnish a satisfactory indemnity bond to obtain the prompt release of such lien, attachment, garnishment or execution. If the Indemnitor assumes a Third Party Defense, it will conduct the Third Party Defense actively and diligently, and will hold all Indemnitees harmless from and against all Losses caused by or arising out of any settlement thereof (other than such Indemnitee's expenses of participation in such defense, prosecution or settlement). Except with the written consent of the Indemnitee to which the Indemnitor is obligated to furnish indemnification pursuant to this Agreement, the Indemnitor will not, in a Third Party Defense, consent to the entry of any judgment or enter into any settlement (i) which does not include as an unconditional term thereof the giving to the Indemnitee by the third party of a release from all liability in respect of such suit, claim, action, or proceeding, (ii) unless there is no finding or admission of any violation of law by the Indemnitee (or any affiliate thereof) or any violation of the rights of any Person and no effect on any other claims of a similar nature that may be made by the same third party against the Indemnitee, or (iii) which imposes any form of relief other than monetary damages. The Indemnifying Parent or its affiliates will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party may, at its own expense and Claim without limiting its obligation the prior written consent of the Indemnitor (not to indemnify the Indemnified Party, participate be unreasonably withheld). Parent will provide reasonable cooperate in the defense of such action with counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Third Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified PartyClaim.

Third Party Claims. If (i) All claims for indemnification made under this Agreement resulting from, related to or arising out of a third party commences any action Third Party claim, action, suit or makes any demand proceeding (a “Third Party Claim”) against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI an Indemnified Party shall be made in accordance with the following procedures. A Person entitled to indemnification under this Article VI (as defined below in Section 11(a)) for which such party (an “Indemnified Party”) shall give prompt written notification to the Person from whom indemnification is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify sought (the other party (“Indemnifying Party”) in writing of the commencement of any Third Party Claim for which indemnification may be sought or, if earlier, upon the written assertion of any such action or demandThird Party Claim; provided, however, that if no delay on the part of the Indemnified Party assumes the defense of the action and fails to provide prompt notice to in notifying the Indemnifying Party, such failure Party shall not limit in any way relieve the Indemnifying Party’s obligation to indemnify the Indemnified Party of any Liability hereunder, except to the extent that such failure materially prejudices the Indemnifying Party’s ability Party has been materially prejudiced thereby, and then only to defend such extent. Within twenty (20) days after delivery of such notification, the action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory upon written notice thereof to the Indemnified Party, or assume control of the defense of such Third Party Claim, so long as prior to the Indemnifying Party mayassuming control of such defense, at it has provided reasonable assurance to the Indemnified Party (A) of its own expense financial ability to assume the cost of such Third Party Claim and without limiting its obligation to indemnify (B) that, as between the Indemnifying Party and the Indemnified Party, assume any Damages related to such Third Party Claim shall be the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case responsibility of the Indemnifying Party will (subject to any applicable limitations provided in Section 6.05); provided, that the Indemnifying Party shall not be unreasonably withheld entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the Third Party Claim seeks an injunction or other equitable or non-monetary relief, (ii) the maximum amount the Indemnified Party would be entitled to recover under this Article VI in respect of such Third Party Claim is anticipated to be more than the event Cap, (iii) the settlement or adjustment involves only the payment Indemnified Party has been advised in writing by its counsel that a reasonable likelihood exists of money damages by a conflict of interest between the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission Party, and (iv) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such Third Party Claim. If the Indemnifying Party does not assume control of such defense in accordance with the terms hereof, the Indemnified Party shall control such defense.

Third Party Claims. If (i) In the event an Indemnified Party becomes aware of a claim by a third party commences any action (a “Third Party Claim”) the Notifying Party shall give the Indemnifying Party prompt written notice of such Third Party Claim (a “Third Party Claim Notice”), which Third Party Claim Notice shall be in writing and shall set forth in reasonable detail: (i) the Losses asserted against, incurred, sustained or makes any demand against a Seller suffered by the Indemnified Party, a Buyer Indemnified Party, or a SFI ; (ii) specify in reasonable detail why the Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, from the Indemnifying Party for such Indemnified Losses; (iii) the facts giving rise to such Third Party will promptly notify Claim and the other party (“Indemnifying Party”) in writing amount or the method of computation of the amount of Losses of such action Third Party Claim (if then known) included in the amount so stated; (iv) the date insofar as practicable each such item that has been or demandmay be paid, incurred or sustained; provided, however, that if (v) the provisions of this Agreement to which such item is related; and (vi) the amount of consideration sought to be delivered to the Indemnified Party assumes the defense in compensation for such Losses as of the action and fails to provide prompt notice date of such Third Party Claim Notice, to the Indemnifying extent known. The failure to give such Third Party Claim Notice shall not affect any Indemnified Party’s ability to seek indemnification hereunder unless, and only to the extent that, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent that such failure materially prejudices has prejudiced the Indemnifying Party’s ability to defend successfully a Third Party Claim. Thereafter, the action. The Notifying Party will give the Indemnifying Party, promptly after the Notifying Party’s (or Indemnified Parties’, as applicable) receipt or delivery thereof, copies of all documents (including court papers) received or delivered by the Notifying Party may, at its own expense and without limiting its obligation to indemnify the (or Indemnified Party, participate in the defense of as applicable) relating to any such action with counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Third Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified PartyClaim.

Third Party Claims. If In the event Parent becomes aware of a third party commences any action or makes any claim (other than a claim that is the subject of an Agreed‑Upon Loss) (a “Third Party Claim”) which Parent reasonably believes may result in a demand against a Seller Indemnified Partythe Escrow Fund or for other indemnification pursuant to this Article VII, a Buyer Indemnified PartyParent shall notify the Escrow Representative (or, or a SFI Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) the event indemnification is entitled to indemnification under this Agreementbeing sought hereunder from fewer than all the Indemnifying Parties, such Indemnified applicable Indemnifying Party) of such claim, and the Escrow Representative shall be entitled on behalf of the Indemnifying Parties (or, in the event indemnification is being sought hereunder from fewer than all the Indemnifying Parties, the applicable Indemnifying Parties shall be entitled), at their expense, to participate in, but not to determine or conduct, the defense of such Third Party will promptly Claim. The failure to so notify the other party (“Escrow Representative shall not relieve the Indemnifying Party”) in writing Parties of any Liability, except to the extent and only to the extent the Escrow Representative demonstrates that the defense of such action or demandis materially prejudiced thereby. If there is a third party claim that, if adversely determined, would give rise to a right of recovery for Losses hereunder, then (A) with respect to the first $200,000 incurred by the Indemnified Parties in defense of all such third-party claims, 100% of such costs, regardless of the outcome of such claims, shall be deemed Losses hereunder, (B) with respect to the second $200,000 incurred by the Indemnified Parties in defense of all such third-party claims, 50% of such costs, regardless of the outcome of such claims, shall be deemed Losses hereunder and 50% of such costs, regardless of the outcome of such claims, shall not be Losses hereunder and shall be borne by the Indemnified Parties, (C) with respect to the any additional costs incurred by the Indemnified Parties in defense of all such third-party claims, 100% of such costs, regardless of the outcome of such claims, shall be deemed Losses hereunder. Parent shall have the right in its sole discretion to conduct the defense of, and to settle, any such claim; provided, however, that if that, except with the written consent of the Escrow Representative (or, in the event indemnification is being sought hereunder from fewer than all the Indemnifying Parties, such applicable Indemnifying Parties), no settlement of any such Third Party Claim with third party claimants shall be determinative of the existence or amount of Losses relating to such matter or whether an Indemnified Party assumes is entitled to indemnification pursuant to this Article VII; provided further, however, the defense consent of the action Escrow Representative with respect to any settlement of any such Third Party Claim shall be deemed to have been given unless the Escrow Representative shall have objected within thirty (30) days after receipt of a written request for such consent by Parent. The Escrow Agent shall not disburse any portion of the Escrow Fund to any third party except in accordance with joint written instructions received from Parent and fails the Escrow Representative. In the event that the Escrow Representative has consented in writing to any such settlement, the Indemnifying Parties shall have no power or authority to object under any provision of this Article VII to the amount of any Third Party Claim by Parent against the Escrow Fund, or against the Indemnifying Parties directly, as the case may be, with respect to such settlement constituting a Payable Claim. Upon the reasonable request of the Escrow Representative, Parent shall endeavor (but neither Parent nor any other Indemnified Party shall be under any obligation, contractual or otherwise) to keep the Escrow Representative reasonably apprised of the status of each Third Party Claim, provided that Parent shall not be required to provide prompt notice access to the Indemnifying Party, such failure shall not limit in any way the Indemnifying Party’s obligation information that is subject to indemnify the Indemnified Party except attorney-client privilege to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party maydoing so, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in the defense opinion of Parent’s counsel, would cause such privilege to be waived (in which case, summaries of such action with counsel reasonably satisfactory privileged information will be made available to the Indemnified Party, extent not violating any such privilege) and the Escrow Representative shall have executed any common interest agreements or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel confidentiality agreements reasonably acceptable requested by Parent. Notwithstanding anything in this Agreement to the Indemnified Partycontrary, this Section 7.6 shall not apply to any third party claim that is the subject of an Agreed‑Upon Loss. In Claims made in respect of any event, the Party that has assumed the defense of such action Agreed‑Upon Loss shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) be resolved in the case of the Indemnifying Party will not be unreasonably withheld manner described in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (iiSection 7.4(b)(ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Partyabove.

Third Party Claims. If In the case of a third party commences any action Third Party Claim, the Indemnifying Party shall have the right, at its expense, to participate in or makes any demand against a Seller Indemnified Partyassume control of the negotiation, a Buyer Indemnified Partysettlement or defense of the claim or Legal Proceeding and, or a SFI Indemnified in such event, the Indemnifying Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing of such action or demand; provided, however, that if shall reimburse the Indemnified Party assumes for all of the Indemnified Party's out-of-pocket expenses as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall have the right to participate in the negotiation, settlement or defense of such Third Party Claim and to retain counsel to act on its behalf, provided that the action fees and fails disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to provide prompt notice to the retention of such counsel at its expense. If the Indemnifying Party, having elected to assume such failure shall not limit in any way control, thereafter fails to defend the Indemnifying Party’s obligation to indemnify Third Party Claim within a reasonable time, the Indemnified Party except shall be entitled to the extent that assume such failure materially prejudices control and the Indemnifying Party’s ability to defend Party shall be bound by the action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify results obtained by the Indemnified Party, participate in Party with respect to such Third Party Claim and shall solely bear all reasonable expenses associated with the defense of such action with counsel reasonably satisfactory to Third Party Claim. If either party makes a payment, resulting in settlement of the Third Party Claim, which precludes a final determination of the merits of the Third Party Claim and the Indemnified Party, or Party and the Indemnifying Party may, at its own expense and without limiting its obligation are unable to indemnify agree whether such payment was unreasonable in the Indemnified Party, assume the defense of such action with counsel reasonably acceptable circumstances having regard to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, amount and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case merits of the Indemnifying Third Party will not Claim, then such dispute shall be unreasonably withheld referred to and finally settled by binding arbitration in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Partyaccordance with Section 8.11.

Third Party Claims. If a third party commences any action or makes any demand against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI The Indemnified Party shall have the right in its sole discretion to conduct the defense of any claim brought by any third party, including the Special Litigation Matter (as defined below in Section 11(aa “Third Party Claim”)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing of such action or demand; provided, however, that any settlement of any such Third Party Claim shall be effected with the prior written consent of the Holder Representative, which consent shall not be unreasonably withheld, conditioned or delayed, but if such consent is unreasonably withheld, conditioned or delayed then, with respect to any Third Party Claim other than the Special Litigation Matter, such consent shall not be required. If any such action or claim is so settled with the consent of the Holder Representative, or if there be a final judgment for the plaintiff in any such action, the Indemnified Party assumes shall be entitled to indemnification for the amount of any Loss to which the Indemnified Party is entitled pursuant to Section 6.2(a) relating thereto, including costs and expenses (internal and out-of-pocket), including attorneys’ fees and expenses, and expenses of investigation and defense, in each case, incurred in connection with and/or pursuit of such final judgment or settlement. If any such action or claim is so settled without the consent of the Holders Representative, such settlement shall not be determinative of whether any Indemnifiable Party is entitled to recover any Loss under this Article VI or, if such Indemnifiable Party is entitled to recover any Losses, the amount of such Losses. The Indemnified Party shall (i) use its commercially reasonable efforts to provide information regarding any such Third Party Claim, excluding any attorney-client privileged information, to the Holder Representative as may be reasonably requested from time-to-time by the Holder Representative and (ii) consult with the Holder Representative regarding the defense of the action and fails any such Third Party Claim; provided, however, that any such consultation shall in no way limit or be deemed to provide prompt notice to the Indemnifying Party, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in ’s right to conduct the defense of such action with counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Third Party may, at Claim in its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Partysole discretion.

Third Party Claims. If (a) An Indemnified Party shall give written notice to any Indemnifying Party within 30 days after it has actual knowledge of commencement or assertion of any action, proceeding, demand, or claim by a third party commences any action or makes any demand against a Seller Indemnified Party(collectively, a Buyer Indemnified Party, or a SFI Indemnified “Third Party (as defined below in Section 11(a)) for which such party (“Indemnified PartyClaim”) is entitled to indemnification under this Agreement, in respect of which such Indemnified Party will promptly notify may seek indemnification under Section 11.1. Such notice shall state the other party (“Indemnifying Party”) in writing nature and basis of such action Third Party Claim and the events and the amounts thereof to the extent known. Any failure so to notify an Indemnifying Party shall not relieve such Indemnifying Party from any liability that it, he, or demand; provided, however, that if the she may have to such Indemnified Party assumes the defense of the action and fails to provide prompt notice to the Indemnifying Partyunder this Article XI, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent that the failure to give such failure notice materially and adversely prejudices the such Indemnifying Party’s ability to defend the . In case any such action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the proceeding or claim is brought against an Indemnified Party, so long as it has acknowledged in writing to the Indemnified Party that it is liable to the Indemnified Party for such Third Party Claim pursuant to this Section, the Indemnifying Party shall be entitled to participate in and, unless in the reasonable judgment of the Indemnified Party a conflict of interests between it and the Indemnifying Party may exist in respect of such Third Party Claim or such Third Party Claim entails a material risk of criminal penalties or civil fines or non-monetary sanctions or equitable remedies being imposed on the Indemnified Party (a “Third Party Penalty Claim”), to assume the defense of such action thereof, with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party, or and after notice from the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, Party of its election so to assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any eventthereof, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will shall not be unreasonably withheld in the event the settlement liable to such Indemnified Party for any legal or adjustment involves only the payment of money damages other expenses subsequently incurred by the latter in connection with the defense thereof other than as expressly provided below in this Section 11.3; provided nothing contained herein shall permit any Indemnifying Party and (ii) to control or participate in any Tax contest or dispute involving the case Class B Member or any Affiliate of the Indemnified Party Class B Member, or permit the Class B Member to control or participate in any Tax contest or dispute involving the Class A Member or any Affiliate of the Class A Member other than the Company; and, provided, further, the Parties agree that the handling of any tax contests involving the Company will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission governed by the Indemnified PartySection 7.7.

Third Party Claims. If In the event that any Claim is asserted by a third Person not a party commences any action or makes any demand to this Agreement (a “Third-Party Claim”) against a Seller an Indemnified Party, a Buyer Indemnified Party, or a SFI the Indemnifying Party will have thirty (30) days from the date on which the Indemnifying Party receives the Claims Notice with respect to such Third-Party Claim to notify the Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreementwriting whether the Indemnifying Party will, such Indemnified Party will promptly notify at the other party (“Indemnifying Party”) in writing ’s sole cost and expense, assume the defense or prosecution of such action or demandthe Third-Party Claim; provided, however, that the Indemnifying Party shall not be entitled to assume the defense of a Third-Party Claim if (A) the Indemnifying Party fails to respond, and confirm in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the Third-Party Claim, to the Claims Notice within thirty (30) calendar days from the date on which the Indemnifying Party receives the Claims Notice; (B) the Indemnifying Party does not use commercially reasonable efforts to diligently defend the Third-Party Claim; (C) there is a material conflict of interest between the Indemnified Party and the Indemnifying Party in the conduct of such defense; (D) the Third-Party Claim alleges fraud or could result in criminal proceedings; (E) the Third-Party Claim seeks injunctive relief or other equitable remedies against the Company or any Indemnified Party; (F) if reasonably requested to do so by the Indemnified Party, the Indemnifying Party fails to have made reasonably adequate provision to ensure the Indemnified Party of the financial ability of the Indemnifying Party to satisfy the full amount of any adverse monetary judgment that may result from such Third-Party Claim; (G) the Third-Party Claim involves a material customer or material vendor of the Indemnified Party or any of its Affiliates; or (H) the Third-Party Claim is, in the reasonable judgment of the Indemnified Party, likely to result in Losses that will exceed the amount of indemnification that the Indemnifying Party would be liable to pay to the Indemnified Party. If the Indemnifying Party elects, and is entitled, to assume the defense of a Third-Party Claim, (1) the Indemnified Party will have the right to participate in the defense thereof and employ counsel separate from the counsel employed by the Indemnifying Party, all at the Indemnified Party’s sole cost and expense; and (2) the Indemnifying Party shall have the right to pay, settle or compromise such Third-Party Claim without the prior written consent of the Indemnified Party, so long as the Indemnifying Party notifies the Indemnified Party at least five (5) days prior to any such payment, settlement or compromise, and such payment, settlement or compromise (x) includes an unconditional release of the Indemnified Party from all Liability in respect of such Third-Party Claim, (y) does not subject the Indemnified Party to any criminal liability or injunctive relief or other equitable remedy, and (z) does not include a statement or admission of fault, culpability or failure to act by or on behalf of the Indemnified Party. Notwithstanding the Indemnifying Party’s right to compromise or settle in accordance with the immediately preceding sentence, the Indemnifying Party may not settle or compromise any Claim over the objection of the Indemnified Party; provided, however, that consent by the Indemnified Party to settlement or compromise will not be unreasonably withheld or delayed. If the Indemnified Party assumes the defense of the action and fails to provide prompt notice to Third-Party Claim, the Indemnifying Party, such failure shall not limit in any way the Indemnifying Party’s obligation Party will use commercially reasonable efforts to indemnify cooperate with the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Third-Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified PartyClaim.

Third Party Claims. If a third Each party commences any action or makes any demand against a Seller entitled to indemnification ------------------ under this Agreement (the "Indemnified Party") shall give notice to the party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, a Buyer Indemnified and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom; provided, that counsel for -------- the Indemnifying Party, who shall conduct the defense of such claim or a SFI litigation, shall be approved by the Indemnified Party (whose approval shall not be unreasonably withheld); and, provided, -------- further, that the failure of any Indemnified Party to give notice as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification provided ------- herein shall not relieve the Indemnifying Party of its obligations under this Agreement, such Section 9. The Indemnified Party will promptly notify the other party (“Indemnifying Party”) may participate in writing of such action or demanddefense at such party's expense; provided, however, that the Indemnifying Party shall pay such expense ----------------- if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party assumes the defense of the action and fails to provide prompt notice to the any other party represented by such counsel in such proceeding. In Indemnifying Party, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in the defense of any such action claim or litigation shall, except with counsel reasonably satisfactory to the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the Indemnifying giving by the claimant or plaintiff to such Indemnified Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of a release from all liability in respect of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadingsclaim or litigation, and other papers filed or served in such action. Neither no Indemnified Party shall make consent to entry of any settlement judgment or adjustment settle such claim or litigation without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Party.

Third Party Claims. (a) If an Action by a third Person who is not a party commences hereto or an Affiliate thereof (a “Third Party Claim”), is made against any action or makes any demand against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party Person entitled to indemnification pursuant to Section 7.2 (as defined below in Section 11(a)) for which such party (an “Indemnified Party”) is entitled ), and if such Person intends to indemnification seek indemnity with respect thereto under this AgreementArticle VII, such Indemnified Party will shall promptly notify give a Notice of Claim to the other party obligated to indemnify such Indemnified Party (such notified party, the “Indemnifying Responsible Party”) in writing ); provided that the failure to give such Notice of such action or demand; provided, however, that if the Indemnified Party assumes the defense of the action and fails to provide prompt notice to the Indemnifying Party, such failure Claim shall not limit in any way relieve the Indemnifying Party’s obligation to indemnify the Indemnified Responsible Party of its obligations hereunder, except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the actionResponsible Party is actually damaged or prejudiced thereby. The Indemnifying Responsible Party may, at its own expense and without limiting its obligation shall have thirty (30) days after receipt of a Notice of Claim to indemnify the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with conduct and control, through counsel reasonably acceptable to the Indemnified Party and at the expense of the Responsible Party, of the settlement or defense of the applicable Third Party Claim, and the Indemnified Party shall cooperate with the Responsible Party in connection therewith; provided that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party; provided, further, that the fees and expenses of such counsel shall be borne by such Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only Responsible Party assumes conduct and control of a Third Party Claim, the payment of money damages by Responsible Party shall not, except with the Indemnifying Party and (ii) in the case consent of the Indemnified Party will (which shall not be unreasonably withheld, conditioned or delayed), enter into any settlement or consent to entry of any judgment that (i) imposes any injunctive relief or other equitable relief against the Indemnified Party, or (ii) does not include as a term thereof the giving by the Person(s) asserting such claim against the Indemnified Party of an express and unconditional release from all liability with respect to such claim. So long as the Responsible Party is contesting any such claim in good faith, the Indemnified Party shall not pay or settle any such claim; provided that such consent may be withheld if the settlement Indemnified Party does pay or adjustment involves performance or admission settle such claim it shall waive any right to indemnity by the Responsible Party for all Losses related to such claim unless the Responsible Party shall have consented to such payment or settlement. If the Responsible Party does not notify the Indemnified PartyParty within thirty (30) days after the receipt of the Notice of Claim that it elects to undertake the defense of the applicable Third Party Claim, the Indemnified Party shall have the right to contest the claim, provided that the Indemnified Party shall not enter into any settlement of, or consent to entry of any judgment with respect to, such Third Party Claim, without the written consent of the Responsible Party (which shall not be unreasonably withheld, conditioned or delayed).

Third Party Claims. If a third party commences any action or makes Proceeding is initiated by any demand against a Seller Indemnified PartyThird Party (any such Proceeding, a Buyer Indemnified Party, or a SFI Indemnified “Third Party Claim”) against any Person entitled to seek indemnification under this Article VIII (as defined below in Section 11(a)) for which such party (an “Indemnified Party”) is entitled ), and if such Indemnified Party intends to seek indemnification with respect thereto under this AgreementArticle VIII, such Indemnified Party will promptly notify shall promptly, after receipt of written notice of such Proceeding, provide an Indemnity Notice with respect to such Proceeding to the other party or parties from whom the Indemnified Party intends to seek indemnification (the “Indemnifying Responsible Party”) ), which Indemnity Notice shall describe such Proceeding in writing of such action or demandreasonable detail and the amount claimed in respect thereof (if known and quantifiable); provided, however, that if the Indemnified failure to so notify the Responsible Party assumes the defense of the action and fails to provide prompt notice to the Indemnifying Party, such failure shall not limit in any way relieve the Indemnifying Party’s obligation to indemnify the Indemnified Responsible Party except of its obligations hereunder unless and then only to the extent that the Responsible Party shall be actually and materially prejudiced by such failure materially prejudices to so notify. For purposes of this Section 8.6, the Indemnifying expiration of the applicable statute of limitations as set forth in Section 8.1 shall be conclusively deemed to constitute actual and material prejudice to the Responsible Party’s ability to defend the action. The Indemnifying Responsible Party may, at its own expense and without limiting its obligation shall be entitled to indemnify the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory Proceeding giving rise to the an Indemnified Party’s claim for indemnification at the Responsible Party’s expense, or the Indemnifying Party may, and at its own expense and without limiting its obligation option shall be entitled to indemnify the Indemnified Party, assume the defense of such action with thereof by appointing a reputable counsel reasonably acceptable to the Indemnified Party. In any event, Party to be the Party that has assumed the lead counsel in connection with such defense within thirty (30) days of such action shall provide the other Party with copies its receipt of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case notice of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheldProceeding; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Party.provided, however, that:

Third Party Claims. If In order for a third party commences any action or makes any demand against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party person (as defined below in Section 11(a)) for which such party (the “Indemnified Party”) is to be entitled to any indemnification against any Losses under Section 9.1 or 9.2 in respect of, arising out of or involving a claim (other than a Tax Claim) made or threatened by any person who is not a Party (or successor to a Party) to this Agreement, against the Indemnified Party (a “Third Party Claim”), such Indemnified Party will promptly notify shall give the other party Party from whom indemnification is sought (the “Indemnifying Party”) a written claim notice relating to such Losses (a “Claim Notice”). The Claim Notice shall be given within thirty (30) Business Days after the Indemnified Party becomes aware of the facts indicating that a claim for indemnification may be warranted and shall state in writing reasonable detail (to the extent known) the nature and amount of such action or demandthe claim; provided, however, that if the Indemnified Party assumes shall not lose any rights to any claims pursuant to this Agreement for failure to submit a Claim Notice within such 10-Business Day period to the defense of extent the action and fails Indemnifying Party is not materially prejudiced by the failure to provide prompt notice timely receive such Claim Notice. Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, such failure shall not limit in any way within five (5) Business Days’ time after the Indemnifying Indemnified Party’s obligation to indemnify receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party except relating to the extent that Third Party Claim and provide any other information and any cooperation with respect to such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Third Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory to the Indemnified Party, or Claim as the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel may reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Partyrequire.

Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a third party commences any action to this Agreement or makes any demand against an Affiliate of a Seller Indemnified Party, a Buyer Indemnified Party, party to this Agreement or a SFI Representative of the foregoing (a “Third Party Claim”) against such Indemnified Party (as defined below in Section 11(a)) for with respect to which such party (“Indemnified Party”) the Indemnifying Party is entitled obligated to provide indemnification under this Agreement, such the Indemnified Party will promptly notify shall give the other party Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (“Indemnifying Party”30) in writing calendar days after receipt of such action or demand; providednotice of such Third Party Claim. The failure to give such prompt written notice shall not, however, that if the Indemnified Party assumes the defense of the action and fails to provide prompt notice to relieve the Indemnifying PartyParty of its indemnification obligations, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except and only to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify forfeits rights or defenses by reason of such failure. Such notice by the Indemnified PartyParty shall describe the Third Party Claim in reasonable detail, assume shall include copies of all material written evidence thereof and shall indicate the defense estimated amount, if reasonably practicable, of such action with counsel reasonably acceptable to the Loss that has been or may be sustained by the Indemnified Party. In connection with any eventThird Party Claim, (i) the Indemnified Party may defend with attorneys of its choice against, and consent to the entry of any order with respect to, the Third Party that has assumed Claim in any manner it may reasonably deem appropriate in its reasonable discretion (provided the Indemnified Party shall consult with any Indemnifying Party in connection therewith), (ii) each Indemnifying Party will be jointly and severally obligated to reimburse the Indemnified Party promptly and periodically for the Losses relating to defending against the Third Party Claim, and (iii) each Indemnifying Party will remain jointly and severally Liable for any Losses. Seller and Buyer shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available (subject to the provisions of Section 5.06) records relating to such action shall provide Third Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Partydefending party.

Third Party Claims. If a third party commences In the case of any action Third Party Claim, if within fifteen (15) days after receiving the notice described in Section 8.2(e)(i) above the Indemnifying Party gives written notice to the Indemnified Party stating (A) that the Indemnifying Party would be liable for indemnity under the provisions hereof if such Third Party Claim were valid, (B) that the Indemnifying Party disputes and intends to defend against such claim and (C) that the Indemnifying Party will be solely responsible for all costs, expenses and liabilities incurred in connection with or makes any demand against a Seller otherwise relating to such claim, then counsel for the defense shall be selected by the Indemnifying Party (subject to the consent of the Indemnified Party, a Buyer Indemnified Partywhich consent shall not be unreasonably withheld), or a SFI whereupon the Indemnifying Party shall not be required to make any payment to the Indemnified Party (as defined below for the costs of its defense counsel in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing respect of such action or demandThird Party Claim as long as the Indemnifying Party is conducting a good faith and diligent defense; provided, however, that if the Indemnified Party shall at all times have the right to fully participate in such defense at its own expense directly or through counsel. If the Indemnifying Party assumes the defense in accordance with the preceding sentence, it shall have the right, with the consent of the action Indemnified Party, which consent shall not be unreasonably withheld, to settle the portion of such Third Party Claim that is subject indemnification; provided, that the settlement (i) does not involve the imposition of an injunction or other equitable relief on the Indemnified Party, and fails (ii) expressly and unconditionally releases the Indemnified Party from all Liabilities with respect to provide prompt such Third Party Claim (and all other claims arising out of the same or similar facts and circumstances), with prejudice. The Indemnifying Party shall keep the Indemnified Party apprised of the status of any Third Party Claim for which it has assumed the defense, shall furnish the Indemnified Party with all documents and information that such Indemnified Party reasonably requests, and shall consult with the Indemnified Party prior to acting on major matters, including settlement discussions. Notwithstanding any of the foregoing, the Indemnifying Party shall not have the right to assume control of the defense, and shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party as incurred, if the Third Party Claim which such Indemnifying Party seeks to assume control of: (1) seeks non-monetary relief; (2) involves criminal or quasi-criminal allegations; (3) is one in which an Indemnifying Party and the Indemnified Party are both named in the complaint, and joint representation by the same counsel would be inappropriate under applicable standards of ethical conduct; (4) could reasonably be expected to adversely affect the Taxes of the Business for a taxable period (or portion thereof) beginning after the Closing Date; or (5) involves a claim for which an adverse determination would have a material and adverse effect on the Indemnified Party’s reputation or future business prospects. If notice of intent to dispute and defend is not given by the Indemnifying Party within the time period referenced above, or if such diligent good faith defense is not being or ceases to be conducted, then the Indemnified Party may undertake the defense of (with counsel selected by such Indemnified Party), and shall have the right to compromise or settle, such Third Party Claim (exercising reasonable business judgment) in its discretion. If such Third Party Claim is one that, by its nature, cannot be defended solely by the Indemnifying Party, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify then the Indemnified Party except to the extent shall make available all information and assistance that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel shall reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadingsrequest, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of cooperate with the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Partydefense.

Third Party Claims. If a (a) Promptly after the assertion by any third party commences of any action or makes claim against any demand against Indemnified Party (a Seller “Third-Party Claim”) that, in the reasonable judgment of such Indemnified Party, a Buyer Indemnified Party, or a SFI may result in the incurrence by such Indemnified Party (as defined below in Section 11(a)) of Losses for which such party (“Indemnified Party”) is Party would be entitled to indemnification under pursuant to this Agreement, such Indemnified Party will shall promptly notify the other party (“Indemnifying Party”) in writing of such action or demand; provided, however, that if the Indemnified Party assumes the defense of the action and fails to provide prompt notice deliver to the Indemnifying Party, Party a written notice describing in reasonable detail such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Third-Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense Claim and without limiting its obligation to indemnify the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Party may, at its own expense sole expense, elect to prosecute such Third-Party Claim to conclusion or settlement satisfactory to the Indemnifying Party by providing evidence reasonably satisfactory to the Indemnified Party that such Indemnifying Party has the financial standing to diligently defend such Third-Party Claim and without limiting its obligation to indemnify the Indemnified PartyParty for any resulting Losses; provided, assume however, that the defense of Indemnifying Party may not elect to prosecute or settle any such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Third-Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent Claim if (i) in the case of the Indemnifying such Third-Party will not be unreasonably withheld in the event the settlement Claim seeks injunctive or adjustment involves only the payment of money damages by the Indemnifying Party and other equitable relief against such Indemnified Party, (ii) such Third-Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (iii) the case Indemnified Party reasonably believes an adverse determination with respect to such Third-Party Claim would be detrimental to or injure such Indemnified Party’s reputation or future business prospects; provided, further, that no delay on the part of the Indemnified Party will not be unreasonably withheld; provided in notifying the Indemnifying Party shall relieve the Indemnifying Party of any liability or obligations hereunder, except to the extent that the Indemnifying Party has been materially prejudiced thereby, and then only to such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Partyextent.

Third Party Claims. If 15.1 After receiving written notice of any third-party claim (including any governmental authority) that may trigger a third party commences any action claim by a JV Group Company against the Warranting Party for indemnification pursuant to sections 11, 12.3, 13.10 or makes any demand against 14 (each a Seller Indemnified “Third Party Claim”), such JV Group Company shall as soon as reasonably feasible give written notice thereof to the Warranting Party, a Buyer Indemnified Party, provided that the failure to so notify or a SFI Indemnified delay in so notifying the Warranting Party as provided in this section 15.1 will not relieve the Warranting Party from any liability or obligations that it may have pursuant to this Agreement, except to the extent such Warranting Party shall actually have been materially prejudiced by such failure or delay. Such notice shall specify in reasonable detail the basis for such Third Party Claim and, to the extent feasible, set forth the estimated amount of such Third Party Claim, and shall include a copy of any relevant correspondence so far exchanged regarding such matter. If without undue delay after having received such notice from a JV Group Company, the Warranting Party sends a written notice to such JV Group Company in which the Warranting Party finally and bindingly accepts its liability as to the Third Party Claim (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification and specifies the limitations of liability under this Agreement, if any, to which such Indemnified acceptance is limited), the Warranting Party will promptly notify the other party (“Indemnifying Party”) in writing shall be entitled to assume control of such action or demand; provided, however, that if the Indemnified Party assumes the defense of the action and fails to provide prompt notice to the Indemnifying Party, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in the defense of such action with Third Party Claim employing its own counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Party may, at its own expense sole risk, cost and without limiting its obligation expense, including all related fees and costs of defense (Rechtsverfolgungskosten) (e.g. due to indemnify courts, witnesses, experts and including the Indemnified Party, assume the defense JV Group Company’s out of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Partypocket expenses).

Third Party Claims. If a third party commences any action or makes any demand against a Seller Indemnified Party, a Buyer Indemnified PartyProceeding is initiated, or a SFI Indemnified claim is made, by any Third Party against any Person entitled to seek indemnification under this Article V (as defined below in Section 11(a)) for which such party (an “Indemnified Party”) is entitled ), and if such Indemnified Party intends to seek indemnification with respect thereto under this AgreementArticle V, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing shall promptly, and prior to any settlement or resolution of such action proceeding, after receipt of written notice of such Proceeding, provide written notice of such Proceeding to the party or demand; provided, however, that if parties from whom the Indemnified Party assumes intends to seek indemnification from (the defense of “Responsible Party”), which notice shall describe such Proceeding in reasonable detail and the action amount thereof (if known and fails quantifiable), provided that the failure to provide prompt notice to the Indemnifying Party, such failure so notify a Responsible Party shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified relieve such Responsible Party except of its obligations hereunder unless and to the extent that the Responsible Party shall be actually and materially prejudiced by such failure materially prejudices the Indemnifying Party’s ability to defend the actionso notify. The Indemnifying A Responsible Party may, at its own expense and without limiting its obligation shall be entitled to indemnify the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory Proceeding giving rise to an Indemnified Party’s claim for indemnification at such Responsible Party’s expense, and at its option (subject to the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation limitations set forth below) shall be entitled to indemnify the Indemnified Party, assume the defense of such action with thereof by appointing a reputable counsel reasonably acceptable to the Indemnified Party. In any eventParty to be the lead counsel in connection with such defense within thirty (30) days of its receipt of notice of the Proceeding, provided that prior to the Responsible Party that has assumed the defense assuming control of such action shall provide the other Party with copies of all noticesdefense, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent it shall: (ia) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of demonstrate to the Indemnified Party will not be unreasonably withheld; provided that in writing such consent may be withheld if Responsible Party’s financial ability to provide full indemnification to the settlement or adjustment involves performance or admission Indemnified Party with respect to such Proceeding (including the ability to post any bond required by the Indemnified Party.court or adjudicative body before which such Proceeding is taking place), and (b) agree in writing to be fully responsible for all Losses relating to such Proceeding, provided, further, that:

Third Party Claims. (a) If a third claim, action, suit or proceeding by a Person who is not a party commences hereto or an Affiliate thereof (a “Third Party Claim”) is made against any action or makes any demand against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party Person entitled to indemnification pursuant to Section 8.2 (as defined below in Section 11(a)) for which such party (an “Indemnified Party”) is entitled ), and if such Person intends to indemnification seek indemnity with respect thereto under this AgreementArticle 8, such Indemnified Party will shall promptly notify give a Notice of Claim to the other party obligated to indemnify such Indemnified Party (such notified party, the “Indemnifying Responsible Party”); provided that the failure to give such Notice of Claim shall not relieve the Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is materially prejudiced thereby. The Responsible Party shall have twenty (20) days after receipt of such notice to assume the conduct and control, at the expense of the Responsible Party so long as the Responsible Party acknowledges in writing of such action or demand; provided, however, that if the Indemnified Party assumes the defense of the action and fails to provide prompt notice to the Indemnifying Party, such failure shall not limit in any way the Indemnifying Party’s its obligation to indemnify the Indemnified Party except for Losses related to such Third Party Claim (subject to the extent that such failure materially prejudices limitations set forth in this Article 8), of the Indemnifying Party’s ability to defend settlement or defense thereof, and the action. The Indemnifying Indemnified Party mayshall, at its own expense sole cost and without limiting its obligation expense, reasonably cooperate with the Responsible Party in connection therewith; provided that the Responsible Party shall permit the Indemnified Party to indemnify participate in such settlement or defense through counsel chosen by such Indemnified Party (the fees and expenses of such counsel shall be borne by such Indemnified Party). So long as the Responsible Party is reasonably contesting any such claim in good faith, the Indemnified Party 57 shall not pay or settle any such claim. If the Responsible Party elects to conduct the defense and settlement of a Third Party Claim, then the Indemnified Party shall have the right to pay or settle such Third Party Claim; provided that in such event it shall waive any right to indemnity by the Responsible Party for all Losses related to such claim unless the Responsible Party shall have consented to such payment or settlement. If the Responsible Party does not notify the Indemnified Party within twenty (20) days after the receipt of the Indemnified Party, participate in ’s Notice of Claim hereunder that it elects to undertake the defense of such action with counsel reasonably satisfactory to thereof, the Indemnified PartyParty shall have the right to contest, settle or compromise the Indemnifying claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Responsible Party mayshall not, at its own expense and without limiting its obligation to indemnify except with the consent of the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action (which shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in or delayed), consent to a settlement, compromise or discharge of, or the event the settlement entry of any judgment arising from, any Third Party Claim, unless (x) such settlement, compromise or adjustment involves only the payment discharge does not involve any finding or admission of money damages any violation of law or admission of any wrongdoing by the Indemnifying Indemnified Party and (y) the Responsible Party shall (i) pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement, (ii) in the case not encumber any of the assets of any Indemnified Party will not be unreasonably withheld; provided or agree to any restriction or condition that such consent may be withheld if would apply to or adversely affect any Indemnified Party or the Company, (iii) obtain, as a condition of any settlement or adjustment involves performance or admission by other resolution, a complete and unconditional release of each Indemnified Party from any and all liability in respect of such Third Party Claim and (iv) such settlement would not, and would not reasonably be expected to, affect adversely the Indemnified Party’s Tax liability.

Third Party Claims. If Promptly after receipt by a third party commences Person entitled to indemnity under Article IX of notice of the assertion of a Third-Party Claim against it, such Party (hereafter, an "Indemnified Party") shall give notice to the Indemnifying Party of the assertion of such Third-Party Claim; provided that the failure to notify the Indemnifying Party shall not relieve the Indemnifying Party of any action or makes liability that it may have to any demand against a Seller Indemnified Party, a Buyer except to the extent that the Indemnifying Party demonstrates that the defense of such Third-Party Claim is prejudiced by the Indemnified Party's failure to give such notice. If an Indemnified Party gives notice to the Indemnifying Party pursuant to Article IX of the assertion of such Third-Party Claim, the Indemnifying Party shall be entitled to participate in the defense of such Third-Party Claim and, to the extent that it wishes (unless the Indemnifying Party is also a Party against whom the Third-Party Claim is made and the Indemnified Party determines in good faith that joint representation would be inappropriate, or a SFI the Indemnifying Party fails to provide reasonable assurance to the Indemnified Party (of its financial capacity to defend such Third-Party Claim and provide indemnification with respect to such Third-Party Claim), to assume the defense of such Third-Party Claim with counsel satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such Third-Party Claim, the Indemnifying Party shall not, as defined below long as it diligently conducts such defense, be liable to the Indemnified Party under Article IX for any fees of other counsel or any other expenses with respect to the defense of such Third-Party Claim, in Section 11(a)) each case subsequently incurred by the Indemnified Party in connection with the defense of such Third-Party Claim, other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of a Third-Party Claim, such assumption will conclusively establish for purposes of this Agreement that the claims made in that Third-Party Claim are within the scope of and subject to indemnification; and no compromise or settlement of such Third-Party Claims may be effected by the Indemnifying Party without the Indemnified Party's Consent unless there is no finding or admission of any violation of any applicable law the sole relief provided is monetary damages that are paid in full by the Indemnifying Party, and the Indemnified Party shall have no liability with respect to any compromise or settlement of such Third-Party Claims effected without its consent. If notice is given to the Indemnifying Party of the assertion of any Third-Party Claim and the Indemnifying Party does not, within 10 days after the Indemnified Party's notice is given, give notice to the Indemnified Party of its election to assume the defense of such Third-Party Claim, the Indemnifying Party shall be bound by any determination made in such Third-Party Claim or any compromise or settlement effected by the Indemnified Party. Notwithstanding the foregoing, if an Indemnified Party determines in good faith that there is a reasonable probability that a Third-Party Claim may adversely affect it or its affiliates other than as a result of monetary damages for which such party (“Indemnified Party”) is it would be entitled to indemnification under this Agreement, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing of such action or demand; provided, however, that if the Indemnified Party assumes the defense of the action and fails to provide prompt may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise, or settle such failure Third-Party Claim, but the Indemnifying Party shall not limit in be bound by any way determination of any Third-Party Claim so defended for the purposes of this Agreement or any compromise or settlement effected without its consent (which may not be unreasonably withheld). With respect to any Third-Party Claim subject to indemnification under this Article IX: both the Indemnified Party and the Indemnifying Party’s obligation , as the case may be, shall keep the other party fully informed of the status of such Third-Party Claims and any related proceedings at all stages thereof where such party is not represented by its own counsel, and the Parties agree (each at its own expense) to indemnify render to each other such assistance as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the Indemnified proper and adequate defense of any Third-Party except Claim. With respect to any Third-Party Claim subject to indemnification under this Article IX, the Parties agree to cooperate in such a manner as to preserve in full (to the extent that such failure materially prejudices possible) the Indemnifying Party’s ability confidentiality of all confidential information and the attorney-client and work-product privileges. In connection therewith, each party agrees that: (i) it shall use its best efforts, in respect of any Third-Party Claim in which it has assumed or participated in the defense, to defend the action. The Indemnifying Party mayavoid production of confidential information (consistent with applicable law and rules of procedure), at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate (ii) all communications between any party hereto and counsel responsible for or participating in the defense of such action with counsel reasonably satisfactory any Third-Party Claim shall, to the Indemnified Partyextent possible, be made so as to preserve any applicable attorney-client or work-product privilege. The Indemnification provisions of Article IX shall be enforceable regardless of whether the liability is based on past, present or future acts, claims or legal requirements (including any past, present or future environmental law, fraudulent transfer act, occupational safety and health law, or products liability, securities or other legal requirement), and regardless of whether any Person (including the Person from whom indemnification is sought) alleges or proves the sole, concurrent, contributory or comparative negligence of the Person seeking indemnification, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify sole or concurrent strict liability imposed on the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified PartyPerson seeking indemnification.

Third Party Claims. If An Indemnified Party that desires to seek indemnification under any part of this Section 10 with respect to any actions, suits or other administrative or judicial proceedings (each, an "Action") that may be instituted by a third party commences any action or makes any demand against shall give each Indemnitor prompt notice of a Seller third party's institution of such Action and tender defense of such Action to the Indemnitor, with counsel reasonably satisfactory to such Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing of such action or demand; provided, however, that if the such Indemnified Party assumes shall have the right to participate at its own expense in the defense of such Action; and provided, further, that the action Indemnitor shall not consent to the entry of any judgment or enter into any settlement, that (x) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a complete release therefrom, or (y) provides for injunctive or other non-monetary relief affecting the Indemnified Party, except with the written consent of such Indemnified Party (which consent shall not be unreasonably withheld, delayed or conditioned). The Indemnified Party shall render all assistance and fails cooperation to provide the Indemnitor (at Indemnitor's sole expense) which the Indemnitor may request in defense of any such Action including, without limitation, the making of witnesses and documents available for depositions, interrogatories and court proceedings. Any failure to give prompt notice and to tender the Indemnifying Party, such failure defense of an Action pursuant to this Section 10.9 shall not limit in any way the Indemnifying bar an Indemnified Party’s obligation 's right to indemnify the Indemnified Party claim indemnification under this Article 10, except to the extent that an Indemnitor shall have been harmed by such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Partyfailure.

Third Party Claims. (a) If a claim by a third party commences is made against any action or makes any demand against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party and/or Target Company (as defined below in Section 11(aa “Third Party Claim”)) for which , and if such party (“Indemnified Party”) is entitled Party intends to indemnification seek indemnity with respect thereto under this AgreementArticle VIII, such Indemnified Party will shall promptly notify the other party (“Indemnifying Party”) in writing Party of such action or demandThird Party Claim, which notice shall only be required to be given with respect to Third Party Claims that are subject to indemnification by the Indemnifying Party pursuant to the terms hereunder; provided, however, that if the Indemnified Party assumes the defense of the action and fails failure to provide prompt notice to so notify shall not relieve the Indemnifying PartyParty of its obligations hereunder, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the actionParty is actually and materially prejudiced thereby. The Indemnifying Party may, at its own expense shall have fifteen (15) Business Days after receipt of such notice to assume the conduct and without limiting its obligation to indemnify the Indemnified Party, participate in control of the defense of such action with counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Third Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with Claim through counsel reasonably acceptable to the Indemnified Party at the expense of the Indemnifying Party. In any event, ; provided that the Indemnifying Party shall have no right to conduct and control such defense to the extent that it has assumed not agreed to indemnify the defense Indemnified Party of such action shall provide Third Party Claim; and provided, further, that the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Indemnifying Party shall make any settlement or adjustment without not be entitled to assume control of such defense and shall pay the other Party’s prior written consent, which consent fees and expenses of counsel retained by the Indemnified Party if (i) such Third Party Claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation against Purchaser’s officers or directors; and (ii) the Indemnifying Party, in the case reasonable judgment of the Indemnified Party, grossly failed or is grossly failing to vigorously prosecute or defend such Third Party Claim. In the event that the Indemnifying Party has not agreed to indemnify the Indemnified Party in respect of any Third Party Claim brought against any of the Target Companies, then the respective Target Company or Target Company Subsidiary shall have the right to conduct and control such defense through counsel reasonably acceptable to the respective Target Company or Target Company Subsidiary, and at the expense of the respective Target Company (in the understanding, however, that in the event that a final arbitration resolution that admits no further recourse under the ICC Rules (laudo definitivo) determines that a Third Party Claim is effectively indemnifiable by the Indemnifying Party, the indemnification obligations of the Indemnifying Party will not be unreasonably withheld in shall include any such expenses borne by the event the settlement or adjustment involves only the payment of money damages by respective Target Company, and the Indemnifying Party and (ii) in shall be obligated to indemnify the case Purchaser pursuant to the terms of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Partythis Agreement).

Third Party Claims. If a third party commences any action or makes any demand against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI Following the receipt of notice provided by an Indemnified Party (as defined below in pursuant to Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement7.2 of the commencement of any action, suit or proceeding against such Indemnified Party will promptly notify by a Third Party with respect to which such Indemnified Party intends to claim any Loss under this Article 7, an Indemnifying Party shall have the other party (“right to defend such claim, at such Indemnifying Party”) in writing ’s expense and with counsel of such action or demand; provided, however, that if its choice reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the defense of such claim, the action and fails to provide prompt notice to Indemnified Party shall, at the request of the Indemnifying Party, use commercially reasonable efforts to cooperate in such failure shall not limit in any way defense; provided, that the Indemnifying Party shall bear the Indemnified Party’s obligation to indemnify reasonable out-of-pocket costs and expenses incurred in connection with such cooperation. So long as the Indemnifying Party is conducting the defense of such claim as provided in this Section 7.4, the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, may retain separate co-counsel at its own expense and without limiting its obligation to indemnify the Indemnified Party, may participate in the defense of such action with counsel reasonably satisfactory to the Indemnified Partyclaim, or and the Indemnifying Party may, at its own expense and without limiting its obligation may consent to indemnify the Indemnified Party, assume entry of any reasonable Judgment or enter into any reasonable settlement with respect to such claim [***]. In the event the Indemnifying Party does not or ceases to conduct the defense of such action with counsel reasonably acceptable claim as so provided, the Indemnified Party may defend against such claim and the Indemnified Party may consent to the Indemnified Partyentry of any reasonable Judgment or enter into any reasonable settlement with respect to such claim [***]. In any eventFurther, in the event the Indemnifying Party that has assumed does not or ceases to conduct the defense of such action shall provide claim as so provided, (A) subject to the other Party with copies of all noticeslimitations set forth in Section 7.3, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in shall reimburse the event Indemnified Party promptly and periodically for the settlement or adjustment involves only the payment reasonable out-of-pocket costs of money damages by defending against such claim, including reasonable attorneys’ fees and expenses against reasonably detailed invoices, and (B) the Indemnifying Party and (ii) in the case of shall remain responsible for any Losses the Indemnified Party will not be unreasonably withheld; may suffer as a result of such claim to the full extent provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Partyin this Article 7.

Third Party Claims. If a third party commences any action or makes any demand against a Seller Indemnified Party(i) Except as provided in this Section 7.3, a Buyer Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing of such action or demand; provided, however, that if the Indemnified Party assumes the defense of the action and fails to provide prompt notice to the Indemnifying Party, such failure Party shall not limit in any way have the Indemnifying Party’s obligation right to indemnify the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in the defense of such action with retain counsel reasonably satisfactory acceptable to the Indemnified Party, to contest, defend, litigate or settle any such Third Party Claim which involves (and continues to involve) solely monetary damages; provided that the Indemnifying Party mayshall have notified the Indemnified Party in writing of its intention to do so within 10 Working Days of the Indemnified Party having given notice of the Third Party Claim to the Indemnifying Party under Section 7.3(a); provided, at its own expense further, that (1) the Indemnifying Party expressly agrees in such notice to the Indemnified Party that, as between the Indemnifying Party and without limiting its obligation to indemnify the Indemnified Party, assume the defense Indemnifying Party shall be solely obligated to fully satisfy and discharge the Third Party Claim notwithstanding any limitation with respect to indemnification included in this Agreement; (2) the Third Party Claim is not, in the reasonable judgment of such action with counsel reasonably acceptable to the Indemnified Party. In any event, likely to result in Losses that will exceed the Cap or the Fundamental Cap (as applicable); (3) if reasonably requested to do so by the Indemnified Party, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Indemnifying Party shall make any settlement or adjustment without have made reasonably adequate provision to ensure the other Party’s prior written consent, which consent (i) in Indemnified Party of the case financial ability of the Indemnifying Party will not be unreasonably withheld in to satisfy the event the settlement or adjustment involves only the payment full amount of money damages any adverse monetary judgment that may result from such Third Party Claim; (4) assumption by the Indemnifying Party of such Third Party Claim could not reasonably be expected to cause a material adverse effect on the Indemnified Party’s business; and (ii5) the Indemnifying Party shall diligently contest the Third Party Claim (the conditions set forth in clauses (1), (2), (3), (4) and (5) being collectively referred to as the “Litigation Conditions”). The Indemnified Party shall have the right to participate in, and to be represented by counsel (at its own expense) in any such contest, defense, litigation or settlement conducted by the case of Indemnifying Party; provided, that the Indemnified Party will shall be entitled to reimbursement therefor if the Indemnifying Party shall lose its right to contest, defend, litigate and settle the Third Party Claim or if representation of the Indemnifying Party and the Indemnified Party by the same counsel would, in the reasonable opinion of such counsel, constitute a non-waivable conflict of interest under applicable standards of professional conduct. The Indemnifying Party shall not be unreasonably withheld; provided that such consent may be withheld entitled, or shall lose its right, to contest, defend, litigate and settle the Third Party Claim if the settlement or adjustment involves performance or admission by Indemnified Party shall give written notice to the Indemnified PartyIndemnifying Party of any objection thereto based upon the Litigation Conditions.

Third Party Claims. If Following the receipt of notice provided by a third party commences Purchaser Indemnified Party pursuant to Section 8.3 of any action or makes any demand against Third Party Claim, a Seller Indemnifying Party shall have the right to defend such claim, at such Seller Indemnifying Party’s expense and with counsel of its choice reasonably satisfactory to the Purchaser Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify . If the other party (“Seller Indemnifying Party”) in writing of such action or demand; provided, however, that if the Indemnified Party assumes the defense of such claim, the action and fails to provide prompt notice to Purchaser Indemnified Party shall, at the request of the Seller Indemnifying Party, use commercially reasonable efforts to cooperate in such failure defense; provided, that the Seller Indemnifying Party shall not limit in any way bear the Indemnifying Purchaser Indemnified Party’s obligation to indemnify reasonable out-of-pocket costs and expenses incurred in connection with such cooperation. So long as the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Seller Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in is conducting the defense of such action with claim as provided in this Section 8.5, the Purchaser Indemnified Party may retain separate co-counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Partymay participate in, assume but not control, the defense of such action claim, and the Seller Indemnifying Party shall not consent to the entry of any Order or enter into any settlement with counsel respect to such claim without the prior written consent of the Purchaser Indemnified Party unless such Order or settlement (A) provides for the payment by the Seller Indemnifying Party of money as sole relief (if any) for the claimant (other than customary and reasonable confidentiality and similar obligations relating to such claim, Order or settlement), (B) results in the full and general release of the Purchaser Indemnified Party from all liabilities arising out of, relating to or in connection with such claim, and (C) does not involve a finding or admission of any violation of any law, rule, regulation or Order, or the rights of any Person. In the event the Seller Indemnifying Party does not or ceases to conduct the defense of such Third Party Claim as so provided, (i) the Purchaser Indemnified Party may defend against such Third Party Claim, provided that it shall not consent to the entry of any Order or enter into any settlement with respect to, such claim absent the prior written consent of the Seller (not to be unreasonably withheld, delayed or conditioned) unless such settlement or Order does require any payment or other obligation from any Seller Indemnifying Party (it being understood that any material breach of the foregoing shall relieve the Seller Indemnifying Parties from any indemnification obligation with respect to such Third Party Claim),(ii) subject to the limitations set forth in Section 8.4, the Seller Indemnifying Party shall reimburse the Purchaser Indemnified Party promptly and periodically for the reasonable out-of-pocket costs of defending against such claim, including reasonable attorneys’ fees and expenses against reasonably detailed invoices (subject to an undertaking from the Purchaser (or an Affiliate thereof) in form and substance reasonably acceptable to the Seller to repay any such reimbursements if ultimately determined by a court of competent jurisdiction that the Purchaser Indemnified Party. In Parties were not entitled to indemnification hereunder) and (iii) the Seller Indemnifying Party shall remain responsible for any event, Losses the Purchaser Indemnified Party that has assumed the defense may suffer as a result of such action shall provide claim to the other Party with copies of all notices, pleadings, and other papers filed or served full extent provided in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Partythis Section 8.

Third Party Claims. If a third party commences any action or makes any demand against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI An Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing of such action or demand; provided, however, that if the Indemnified Party assumes the defense of the action and fails to provide prompt shall give written notice to the Indemnifying Party, such failure shall not limit Party promptly after it has actual knowledge of commencement or assertion of any Third Party Claim in any way the Indemnifying Party’s obligation to indemnify respect of which the Indemnified Party may seek indemnification under Section 7.1. Such notice shall state the nature and basis of such Third Party Claim and the events and the amounts thereof to the extent known. Any failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability that the Indemnifying Party may have to the Indemnified Party under this Article 7, except to the extent that the failure to give such failure notice materially and adversely prejudices the Indemnifying Party’s ability to defend the . In case any such action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the proceeding or claim is brought against an Indemnified Party, so long as it has acknowledged in writing to the Indemnified Party that it is liable for such Third Party Claim pursuant to this Section 7.3, the Indemnifying Party shall be entitled to participate in and, unless in the reasonable judgment of the Indemnified Party a conflict of interests between it and the Indemnifying Party may exist in respect of such Third Party Claim or such Third Party Claim is a Third Party Penalty Claim, to assume the defense of such action thereof, with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party, and after notice from the Indemnifying Party to the Indemnified Party of its election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnified Party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof other than reasonable costs of investigation or defending such portion of such Third Party Penalty Claim; provided nothing contained herein shall permit Southern to control or participate in any Tax contest or dispute involving AGM or any Affiliate of AGM, or permit AGM to control or participate in any Tax contest or dispute involving Southern or any Affiliate of Southern other than the Company; and, provided, further, the Parties agree that the handling of any Tax contests involving the Company will be DM_US 164459497-11.107145.0012 governed by Section 7.7 of the LLC Agreement. In the event that (i) the Indemnifying Party advises an Indemnified Party that the Indemnifying Party will not contest a claim for indemnification hereunder, (ii) the Indemnifying Party fails, within thirty (30) days of receipt of any indemnification notice to notify, in writing, such Indemnified Party of its election, to defend, settle or compromise, at its sole cost and expense, any such Third Party Claim (or discontinues its defense at any time after it commences such defense) or (iii) in the reasonable judgment of the Indemnified Party, a conflict of interests between it and the Indemnifying Party exists in respect of such Third Party Claim or the Indemnifying action or claim is a Third Party Penalty Claim, then the Indemnified Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Partyoption, assume the defense of defend, settle or otherwise compromise or pay such action with counsel reasonably acceptable to or claim or Third Party Claim in each case, at the Indemnified sole cost and expense of the Indemnifying Party. In any event, unless and until the Indemnifying Party that has assumed elects in writing to assume and does so assume the defense of any such claim, proceeding or action, the Indemnifying Party shall be liable for the Indemnified Party’s reasonable costs and expenses arising out of the defense, settlement or compromise of any such action, claim or proceeding. The Indemnified Party shall cooperate to the extent commercially reasonable with the Indemnifying Party in connection with any negotiation or defense of any such action or claim by the Indemnifying Party. The Indemnifying Party shall provide keep the other Indemnified Party fully apprised at all times as to the status of the defense or any settlement negotiations with copies of all noticesrespect thereto. If the Indemnifying Party elects to defend any such action or claim, pleadings, and other papers filed or served then the Indemnified Party shall be entitled to participate in such action. Neither defense with counsel of its choice at its sole cost and expense unless otherwise specified herein; provided that any such participation of the Indemnified Party shall make be at the Indemnifying Party’s sole cost and expense to the extent such participation relates to a Third Party Penalty Claim. If the Indemnifying Party does not assume such defense, the Indemnified Party shall keep the Indemnifying Party apprised at all times as to the status of the defense; provided, however, that the failure to keep the Indemnifying Party so informed shall not affect the obligations of the Indemnifying Party hereunder. The Indemnifying Party shall not be liable for any settlement of any action, claim or adjustment proceeding effected without its written consent; provided, however, that the Indemnifying Party shall not unreasonably withhold, delay or condition any such consent. Notwithstanding anything in this Section 7.3 to the contrary, the Indemnifying Party shall not, without the other Indemnified Party’s prior written consent, (x) settle or compromise any claim or consent to entry of judgment in respect thereof which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the any condition other than payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Party, (y) settle or compromise any claim or consent to entry of judgment in respect thereof without first demonstrating to the Indemnified Party the ability to pay such claim or judgment, or (z) settle or compromise any claim or consent to entry of judgment in respect thereof that does not include, as an unconditional term thereof, the giving by the claimant or the plaintiff to the Indemnified Party, a full and complete release from all liability in respect of such claim.

Third Party Claims. If After receipt by a party or a third party commences beneficiary of notice of the commencement of any action or makes any demand proceeding against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(a)) it for which such party (“Indemnified Party”) or third party beneficiary is entitled or is seeking to assert a right to indemnification under this AgreementSection 7.2 or 7.3 (an "Indemnified Party"), such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing of such action or demand; provided, however, that if the Indemnified Party assumes the defense shall promptly give notice to a representative of the action and fails Stockholders if the indemnification is sought under Section 7.2 or to provide prompt notice Cyberkinetics if indemnification is sought under Section 7.3 (the "Notice Party") of the commencement thereof, but the failure to so notify the Indemnifying Party, such failure Notice Party shall not limit in relieve them or it of any way the Indemnifying Party’s obligation liability they or it may have to indemnify the any Indemnified Party except to the extent that of actual prejudice caused by such failure materially prejudices failure. In case any such proceeding shall be brought against an Indemnified Party and it shall give notice to the Indemnifying Party’s ability Notice Party of the commencement thereof, the Notice Party will be entitled to defend participate therein and, if the action. The Indemnifying Notice Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate is Cyberkinetics it may (except as provided in the next sentence), assume the defense of such action thereof with counsel reasonably satisfactory to such Indemnified Party. Cyberkinetics may not assume the defense if (i) Cyberkinetics or the Surviving Corporation is also a party to such proceeding and the Indemnified Party determines in good faith that joint representation would be inappropriate, (ii) the Notice Party fails to provide reasonable assurance to the Indemnified Party of its financial capacity to defend such proceedings and provide indemnification with respect thereto, (iii) equitable relief is being sought against an Indemnified Party, (iv) the claim involves Taxes or (v) the proceeding, if adversely determined, would materially impair the financial condition, business or prospects of an Indemnified Party. If entitled and after notice from Cyberkinetics to such Indemnified Party of its election to assume the defense, Cyberkinetics shall not be liable to such Indemnified Party for any fees of other counsel or any other expenses with respect to the defense of such proceeding, in each case subsequently incurred by such Indemnified Party in connection with the defense thereof; provided that Cyberkinetics may only assume control of the defense of such proceeding if it acknowledges in writing to the Indemnified Party that any damages, fines, costs or Liabilities that may be assessed against the Indemnified Party in connection with the proceeding constitute Damages for which the Indemnified Party shall be indemnified pursuant to Section 7.2. If Cyberkinetics assumes the defense of such proceeding, no compromise or settlement thereof may be effected by the Notice Party without the Indemnified Party's prior written consent (which consent will not unreasonably be withheld or delayed) unless the settlement provides for a full and unconditional release of the Indemnified Party without payment of any funds by the Indemnified Party or (A) there is no finding or admission of any violation of Law or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Party and (B) the sole relief provided is monetary damages that are paid in full by Cyberkinetics. If notice is given to Cyberkinetics and the Surviving Corporation of the commencement of any proceeding and it does not, within ten days after the Indemnified Party's notice is given, give notice to Cyberkinetics and the Surviving Corporation of its election to assume the defense thereof, the Notice Party shall be bound by any determination made in such action or any compromise or settlement thereof effected by the Indemnified Party. Cyberkinetics may only compromise or settle such legal proceeding on behalf of and for the account of the Indemnified Party after it obtains the prior written consent of the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will shall not be unreasonably withheld or delayed. Notwithstanding the other provisions of this Section 7.4, if a third party asserts (other than by means of a proceeding) that Cyberkinetics or the Surviving Corporation is liable to such third party for a monetary or other obligation which may constitute or result in Damages for which Cyberkinetics or the event Surviving Corporation may be entitled to indemnification pursuant to Section 7.2 and Cyberkinetics or the settlement Surviving Corporation reasonably determine in good faith that it has a valid business reason to fulfill such obligation, then (i) Cyberkinetics and the Surviving Corporation shall be entitled to satisfy such obligation, without prior consent from the Stockholders or adjustment involves only the payment of money damages by the Indemnifying Party and their representative or designee, (ii) Cyberkinetics or the Surviving Corporation may subsequently make a timely claim for indemnification in accordance with the case provisions of this Article 7, and (iii) Cyberkinetics or the Surviving Corporation shall be reimbursed, in accordance with the provisions of Article 7, for any such Damages for which it is entitled to indemnification pursuant to Section 7.2 (subject to the right of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if Stockholders to dispute Cyberkinetics' or the settlement Surviving Corporation's entitlement to indemnification, or adjustment involves performance or admission by the Indemnified Partyamount for which it is entitled to indemnification, under the terms of this Section 7.2).

Third Party Claims. If An Indemnified Party that desires to seek indemnification under any part of this Article IX with respect to any actions, suits or other administrative or judicial proceedings (each, an “Action”) that may be instituted by a third party commences any action or makes any demand against shall give each Indemnitor prompt notice of a Seller third party’s institution of such Action and tender defense of such Action to the Indemnitor, with counsel reasonably satisfactory to such Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing of such action or demand; provided, however, that if the such Indemnified Party assumes shall have the right to participate at its own expense in the defense of such Action; and provided, further, that the action Indemnitor shall not consent to the entry of any judgment or enter into any settlement, that (x) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a complete release therefrom, or (y) provides for injunctive or other non-monetary relief affecting the Indemnified Party, except with the written consent of such Indemnified Party (which consent shall not be unreasonably withheld, delayed or conditioned). The Indemnified Party shall render all assistance and fails cooperation to provide the Indemnitor (at Indemnitor’s sole expense) which the Indemnitor may request in defense of any such Action including, without limitation, the making of witnesses and documents available for depositions, interrogatories and court proceedings. Any failure to give prompt notice and to tender the Indemnifying Party, such failure defense of an Action pursuant to this Section 9.8 shall not limit in any way the Indemnifying bar an Indemnified Party’s obligation right to indemnify the Indemnified Party claim indemnification under this Article IX, except to the extent that an Indemnitor shall have been harmed by such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Partyfailure.

Third Party Claims. Each Indemnified Party under this Section 11 shall, promptly after the receipt of notice of the commencement of any Claim by a third party against such Indemnified Party in respect of which indemnity may be sought from an Indemnifying Party under this Section 11, promptly notify the appropriate Indemnifying Party in writing of the commencement thereof (which shall also constitute the notice required by Section 11.3) (a “Claim Notice”). The failure of an Indemnified Party to notify the Indemnifying Party in accordance with this Section 11.4 shall not relieve the Indemnifying Party from any liability which it may have to such Indemnified Party under this Section 11 unless, and only to the extent that, such failure to notify results in such Indemnifying Party’s loss of substantive or practical rights or defenses. If a third party commences Claim is brought against any action or makes any demand against a Seller Indemnified Party, a Buyer the Indemnifying Party shall be entitled, upon written notice to the Indemnified Party within 30 business days after the receipt of the Claim Notice, to assume the defense at its own expense with counsel approved by such Indemnified Party (which approval shall not be unreasonably withheld, conditioned or delayed, and shall not be withheld if such counsel is counsel identified in Section 13.2 hereof); provided, however, the election by such Indemnifying Party to assume such defense shall not preclude the party against which such claim has been made also from participating or continuing to participate in such defense, so long as such party bears its own legal fees and expenses for so doing. Notwithstanding the foregoing, in any Claim in which both an Indemnifying Party, on the one hand, and an Indemnified Party, on the other hand, are, or are reasonably likely to become, a SFI Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreementparty, such Indemnified Party will promptly notify shall have the right, at Indemnifying Party’s expense, to employ separate counsel and to control its own defense of such Claim if, in the reasonable opinion of counsel to such Indemnified Party, either (x) one or more defenses are available to the Indemnified Party that are not available to the Indemnifying Party or (y) a conflict or potential conflict exists between the Indemnifying Party, on the one hand, and such Indemnified Party, on the other party (“Indemnifying Party”) in writing of hand, that would make such action or demandseparate representation advisable; provided, however, that if the Indemnified Party assumes the defense of the action and fails to provide prompt notice to the Indemnifying Party, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) shall not be liable for the fees and expenses of more than one counsel to all Indemnified Parties and (ii) shall reimburse the Indemnified Parties for all of such fees and expenses of such counsel incurred in any action, between the Indemnifying Party and the Indemnified Parties or between the Indemnified Parties and any third-party, as such expenses are incurred; provided further, that, in the case of a Buyer Indemnified Party, such expenses shall be deducted by Buyer from the Holdback Amount, which, except as otherwise provided in Section 11.5, shall be the sole recourse of the Buyer Indemnified Parties for the recovery of such expenses. Each Indemnifying Party agrees that it will not be unreasonably withheld in not, without the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case prior written consent of the Indemnified Party will (which consent shall not be unreasonably withheld; provided , conditioned or delayed), settle, compromise or consent to the entry of any judgment in any pending or threatened Claim relating to the matters contemplated hereby unless such settlement, compromise or consent includes an unconditional release of each Indemnified Party from all liability arising or that may arise out of such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified PartyClaim.

Third Party Claims. If All claims for indemnification made under this Article 6 resulting from a third third-party commences any action or makes any demand claim against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI an Indemnified Party (as defined below below) shall be made in Section 11(a)) for which such party accordance with the following procedures. A Person entitled to indemnification under this Article 6 (an “Indemnified Party”) shall give prompt written notification to the Person from whom indemnification is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify sought (the other party (“Indemnifying Party”) in writing of the commencement of any action, suit or proceeding relating to a third-party claim for which indemnification may be sought or, if earlier, upon the potential assertion of any such claim by a third party (collectively, an “Action”). Within thirty (30) days after delivery of such action or demand; providednotification, however, that if the Indemnified Party assumes the defense of the action and fails to provide prompt notice to the Indemnifying Party, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory upon written notice thereof to the Indemnified Party, or assume control of the defense of the Action with counsel selected by the Indemnifying Party. If the Indemnifying Party maydoes not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense expense. The Party controlling such defense shall keep the other Party advised of the status of such action, suit, proceeding or claim and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action thereof and shall provide consider recommendations made by the other Party with copies respect thereto. The Indemnified Party shall not agree to any STOCK PURCHASE AGREEMENT 22 ELDS01 272111v16 settlement of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement , suit, proceeding or adjustment claim without the other Party’s prior written consentconsent of the Indemnifying Party, which consent (i) in the case of the Indemnifying Party will shall not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Partydelayed.

Third Party Claims. If any Indemnified Party receives notice of the threat, assertion or commencement of any Action made or brought by any Person who is not a third party commences any action to this Agreement or makes any demand against an Affiliate of a Seller Indemnified Party, a Buyer Indemnified Party, party to this Agreement or a SFI Representative of the foregoing (a “Third Party Claim”) against such Indemnified Party (as defined below in Section 11(a)) for with respect to which such party (“Indemnified Party”) an Indemnifying Party is entitled obligated to provide indemnification under this Agreement, such the Indemnified Party will promptly shall give the Indemnifying Party prompt written notice thereof, provided that the failure to so notify the other party Indemnifying Party shall not relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party is materially adversely affected by such failure. Such notice by the Indemnified Party shall describe the Third Party Claim in reasonable detail, shall include copies of all material written evidence thereof (“to the extent in the possession of the Indemnified Party) and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have the right to participate in, or by giving written notice to the Indemnified Party within thirty (30) days following the Indemnifying Party”) ’s receipt of notice of a Third Party Claim, to assume the defense of any Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in writing good faith in such defense; provided, that if the Indemnifying Party is a Seller, such Indemnifying Party shall not have the right to defend or direct the defense of any such Third Party Claim that seeks an injunction or other equitable relief against the Indemnified Party. In the event that the Indemnifying Party assumes the defense of any Third Party Claim, subject to Section 9.05(b), it shall have the right to take such action as it deems necessary to dispute, defend, appeal or make counterclaims pertaining to any such Third Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right to participate in the defense of any Third Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof. The fees and disbursements of such action counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or demandadditional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party, provided, however, that if the Indemnified Party assumes the defense of the action and fails to provide prompt notice to the Indemnifying Party, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld required to pay the fees and expenses of more than one counsel for all Indemnified Parties in the event the settlement or adjustment involves only the payment of money damages by any jurisdiction in any single Third Party Claim. If the Indemnifying Party and (ii) in the case of elects not to compromise or defend such Third Party Claim, fails to notify the Indemnified Party will in writing within the 30-day period noted above of its election to defend as provided in this Agreement, the Indemnified Party may, subject to Section 9.05(b), pay, compromise, defend such Third Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third Party Claim. In any Third Party Claim with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not be unreasonably withheld; provided that assuming the defense of such consent Third Party Claim, shall have the right to participate in such matter and to retain its own counsel at such party’s own expense. The Indemnified Party and the Indemnifying Party shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available (subject to the provisions of Section 6.05) records relating to such Third Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be withheld if reasonably necessary for the settlement or adjustment involves performance or admission by preparation of the Indemnified Partydefense of such Third Party Claim and shall at all times use reasonable best efforts to keep the other party reasonably apprised of the status of any matter the defense of which they are maintaining.

Third Party Claims. If In the event Parent becomes aware of a third party commences any action or makes any claim (other than a claim that is the subject of an Agreed-Upon Loss) (a “Third Party Claim”) which Parent reasonably believes may result in a demand against the Escrow Fund or for other indemnification pursuant to this Article VII (including for this purpose a Seller Indemnified Partythird party audit, a Buyer Indemnified Partyinquiry or proceeding with respect to Taxes that would be subject of an indemnity claim hereunder), or a SFI Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly Parent shall notify the other party (“Indemnifying Party”) in writing Shareholder Representative of such action claim, and the Shareholder Representative shall be entitled on behalf of the Securityholders, at their expense, to participate in, but not to determine or demandconduct, the defense of such Third Party Claim. Parent shall have the right in its sole discretion to conduct the defense of, and to settle, any such claim; provided, however, that except with the consent of the Shareholder Representative, no settlement of any such Third Party Claim with third party claimants shall be determinative of the Securityholders’ responsibility for any such Losses or the amount of Losses relating to such matter. In the event that the Shareholder Representative has consented to any such settlement, the Securityholders shall have no power or authority to object under any provision of this Article VII to the amount of any Third Party Claim by Parent against the Escrow Fund, or against the Securityholders directly, as the case may be, with respect to such settlement. If there is a Third Party Claim that, if adversely determined would give rise to a right of recovery for Losses hereunder, then any amounts incurred or accrued by the Indemnified Party assumes the Parties in defense of such Third Party Claim, regardless of the action and fails to provide prompt notice outcome of such claim, shall be deemed Losses hereunder, except that with respect to the Indemnifying Partymatters set forth on Schedule 7.4(j) hereto, such failure shall not limit amounts incurred in defense and any way the Indemnifying Party’s obligation damages finally awarded will only be deemed to indemnify the Indemnified Party except be Losses to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the actionThird Party Claim is adversely determined. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate Notwithstanding anything in the defense of such action with counsel reasonably satisfactory this Agreement to the Indemnified Partycontrary, or this Section 7.4(j) shall not apply to any Third Party Claim that is the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense subject of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Partyan Agreed-Upon Loss.

Third Party Claims. If (a) In order for an Indemnified Party to seek indemnification under this Article 7 with respect to any action, lawsuit, Proceeding, investigation or other claim brought against it by a third party commences any action or makes any demand against (a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified “Third-Party (as defined below in Section 11(aClaim”)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing of such action or demand; provided, however, that if the Indemnified Party assumes the defense of the action and fails to provide must give prompt written notice to the Indemnifying PartyParty after receiving written notice of such Third-Party Claim, specifying the amount thereof (if known and quantifiable) and the basis of such claim; provided that, any failure to so notify or any delay in notifying the Indemnifying Party shall not relieve the Indemnifying Party of its or his obligations hereunder except to the extent the Indemnifying Party will have been actually and materially prejudiced as a result of such failure, or the indemnification obligations of the Indemnifying Party are materially increased as a result of such failure shall not limit (in any way which case, the Indemnifying Party’s obligation obligations will only be reduced to indemnify the extent of such material increase), or such claims notice was delivered after the expiration of the applicable survival period. With respect to any Third-Party Claim which, if adversely determined, would entitle the Indemnified Party except to the extent that such failure materially prejudices indemnification pursuant to this Article 7, the Indemnifying Party’s ability to defend the action. The Indemnifying Party mayshall be entitled, at its own expense sole cost and without limiting its obligation expense, (i) to indemnify the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory Third-Party Claim giving rise to the Indemnified Party, ’s claim for indemnification or the Indemnifying Party may, (ii) at its own expense and without limiting its obligation option (subject to indemnify the Indemnified Partylimitations set forth below), to assume the defense control of such action with defense and appoint lead counsel reasonably acceptable to the Indemnified Party. In any event; provided that, as a condition precedent to the Party that has assumed the defense Indemnifying Party’s right to assume control of such action shall provide defense, it must first: (1) notify the other Indemnified Party with copies and agree in writing within ten (10) days after the Indemnified Party has given notice of all notices, pleadings, and other papers filed or served in such action. Neither the Third-Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of Claim that the Indemnifying Party will not be unreasonably withheld indemnify the Indemnified Party from and against the entirety of any Losses (without any limitations other than those set forth in Section 7.5) the Indemnified Party may suffer resulting from, arising out of, relating to, in the event nature of, or caused by the settlement or adjustment involves only Third-Party Claim in accordance with the payment terms of money damages by this Agreement; and (2) furnish the Indemnified Party with evidence reasonably satisfactory to the Indemnified Party that the Indemnifying Party has sufficient resources to defend such Third-Party Claim and to satisfy its obligations to the Indemnified Party under this Article 7 in respect of such Third-Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not have the right to assume control of such defense if the Third-Party Claim which the Indemnifying Party seeks to assume control (iiA) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim which, if adversely, determined, would be reasonably expected, in the case good faith judgment of the Indemnified Party, to establish a precedent, custom or practice adverse to the continuing business interests or prospects of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if or the settlement Company, (D) seeks Losses in excess of the Cap or adjustment (E) involves performance or admission by a claim that, in the good faith judgment of the Indemnified Party, the Indemnifying Party failed or is failing to vigorously prosecute or defend (each of the foregoing, an “Exception Claim”).

Third Party Claims. If (a) In the event that Acquiror becomes aware of third-party written claim against an Indemnified Party that constitutes a third party commences matter for which either (i) an Indemnified Party is entitled to indemnification, compensation, or reimbursement under Section 9.2(a) or (ii) if determined adversely to Acquiror or any action or makes any demand against a Seller other Indemnified Party, would provide a Buyer Indemnified Partybasis for a claim under any of the matters indemnifiable under Section 9.2(a) (each, or a SFI Indemnified “Third Party (as defined below in Section 11(aClaim”)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify Acquiror shall provide the other party (“Indemnifying Party”) in writing Securityholder Representative notice of such action Third Party Claim and Acquiror shall have the right in its sole discretion to conduct the defense and prosecution of and to settle or demandresolve any such Third Party Claim; provided, however, that if a failure by Acquiror to give, or a delay in giving, such notice will not affect the Indemnified Party assumes the defense liability of the action and fails to provide prompt notice to the Indemnifying PartyParties hereunder, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent and only to the extent the Securityholder Representative demonstrates that the defense or prosecution of such failure Third Party Claim is materially prejudices the Indemnifying Party’s ability to defend the actionprejudiced thereby. The Indemnifying Securityholder Representative shall have the right to receive copies of all pleadings, material written notices, and material written communications with respect to any Third Party may, at its own expense and without limiting its obligation Claim to indemnify the extent that receipt of such documents does not affect any privilege of or relating to any Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory subject to the Indemnified Partyexecution by the Securityholder Representative of Acquiror’s (and, or the Indemnifying Party mayif required, such third party’s) standard non-disclosure agreement, and shall be entitled, at its own the expense and without limiting its obligation of the Securityholder Representative (on behalf of Indemnifying Parties), to indemnify participate in, but not to determine or conduct, any defense or prosecution of the Indemnified Party, assume the defense of such action Third Party Claim or settlement negotiations with counsel reasonably acceptable respect to the Indemnified Party. In any event, the Third Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified PartyClaim.

Third Party Claims. If An Indemnified Party that desires to seek indemnification under any part of this Section 10 with respect to any actions, suits or other administrative or judicial proceedings (each, an "Action") that may be instituted by a third party commences any action or makes any demand against shall give each Indemnitor prompt notice of a Seller third party's institution of such Action and tender defense of such Action to the Indemnitor, with counsel reasonably satisfactory to such Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing of such action or demand; provided, however, that if the such Indemnified Party assumes shall have the right to participate at its own expense in the defense of such Action; and provided, further, that the action Indemnitor shall not consent to the entry of any judgment or enter into any settlement, that (x) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a complete release therefrom, or (y) provides for injunctive or other non-monetary relief affecting the Indemnified Party, except with the written consent of such Indemnified Party (which consent shall not be unreasonably withheld, delayed or conditioned). The Indemnified Party shall render all assistance and fails cooperation to provide the Indemnitor (at Indemnitor's sole expense) which the Indemnitor may request in defense of any such Action including, without limitation, the making of witnesses and documents available for depositions, interrogatories and court proceedings. Any failure to give prompt notice and to tender the Indemnifying Party, such failure defense of an Action pursuant to this Section 10.9 shall not limit in any way the Indemnifying bar an Indemnified Party’s obligation 's right to indemnify the Indemnified Party claim indemnification under this Section 10, except to the extent that an Indemnitor shall have been harmed by such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not be unreasonably withheld; provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Partyfailure.

Third Party Claims. If Following the receipt of notice provided by an Indemnified Party pursuant to Section 7.2 of the commencement of any action, suit or proceeding against such Indemnified Party by a third party commences any action or makes any demand against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(a)) for with respect to which such party (“Indemnified Party”) is entitled to indemnification under this Agreement, such Indemnified Party will promptly notify intends to claim any Loss under this Article 7, an Indemnifying Party shall have the other party (“right to defend such claim, at such Indemnifying Party”) in writing ’s expense and with counsel of such action or demand; provided, however, that if its choice reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the defense of such claim, the action and fails to provide prompt notice to Indemnified Party shall, at the request of the Indemnifying Party, use commercially reasonable efforts to cooperate in such failure shall not limit in any way defense; provided, that the Indemnifying Party shall bear the Indemnified Party’s obligation to indemnify reasonable out-of-pocket costs and expenses incurred in connection with such cooperation. So long as the Indemnifying Party is conducting the defense of such claim as provided in this Section 7.4, the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, may retain separate co-counsel at its own expense and without limiting its obligation to indemnify the Indemnified Party, may participate in the defense of such action with counsel reasonably satisfactory claim, and neither the Indemnified Party nor the Indemnifying Party shall consent to the entry of any Judgment or enter into any settlement with respect to such claim without the prior written consent of the other party hereto unless such Judgment or settlement (A) provides for the payment by the Indemnifying Party of money as sole relief (if any) for the claimant (other than customary and reasonable confidentiality obligations relating to such claim, Judgment or settlement), (B) results in the full and general release of the Indemnified PartyParty from all liabilities arising out of, relating to or in connection with such claim and (C) does not involve a finding or admission of any violation of any law, rule, regulation or Judgment, or the Indemnifying Party mayrights of any Person, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to has no effect on any other claims that may be made against the Indemnified Party. In any event, the event the Indemnifying Party that has assumed does not or ceases to conduct the defense of such action shall provide the other Party with copies of all noticesclaim as so provided, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) subject to the limitations set forth in Section 7.3 and this Section 7.4, the case Indemnified Party may defend against, and consent to the entry of any reasonable Judgment or enter into any reasonable settlement with respect to, such claim in any manner it may reasonably deem to be appropriate, (ii) subject to the limitations set forth in Section 7.3, the Indemnifying Party will not be unreasonably withheld in shall reimburse the event Indemnified Party promptly and periodically for the settlement or adjustment involves only the payment reasonable out-of-pocket costs of money damages by defending against such claim, including reasonable attorneys’ fees and expenses against reasonably detailed invoices, and (iii) the Indemnifying Party and (ii) in the case of shall remain responsible for any Losses the Indemnified Party will not be unreasonably withheld; may suffer as a result of such claim to the full extent provided that such consent may be withheld if the settlement or adjustment involves performance or admission by the Indemnified Partyin this Article 7.

Third Party Claims. If (a) In the event Parent becomes aware of a third party commences any action claim (a “Third Party Claim”) which Parent reasonably believes may result in indemnifiable Losses pursuant to this Article VII, Parent shall notify the Stockholder Representative of such Third Party Claim (it being understood that no delay in providing such notice shall prejudice Parent’s rights under this Article VII except and solely to the extent that the Stockholder Representative or makes any demand against a Seller Indemnified such Indemnifying Party, a Buyer Indemnified Partyas applicable, is materially prejudiced thereby with respect to the amount of Losses the Indemnifying Parties are responsible for hereunder), and the Stockholder Representative shall be entitled on behalf of the Stockholders, to participate at its expense, but not to determine or a SFI Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification under this Agreementconduct, such Indemnified Party will promptly notify the other party (“Indemnifying Party”) in writing defense of such action or demandThird Party Claim. Parent shall have the right in its sole discretion to conduct the defense of, and to settle, any such Third Party Claim; provided, however, that if except with the Indemnified Party assumes the defense consent of the action and fails to provide prompt notice to the Indemnifying Party, such failure shall not limit in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, participate in the defense of such action with counsel reasonably satisfactory to the Indemnified Party, or the Indemnifying Party may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadingsStockholder Representative, and other papers filed or served in each case such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) in the case of the Indemnifying Party will not be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages by the Indemnifying Party and (ii) in the case of the Indemnified Party will not to be unreasonably withheld; provided that such consent may be withheld if the , conditioned or delayed, no settlement or adjustment involves performance resolution of any such Third Party Claim shall be determinative of the existence or admission by the amount of Losses resulting from, arising out of or relating to such Third Party Claim. The Indemnified Parties’ reasonable attorneys’ and consultants’ fees and expenses incurred in connection with investigating, defending (including expenses of offensive actions taken in connection with any defensive strategy) against or settling such Third Party Claims shall be included in the Losses for which the Indemnified PartyParties may seek indemnification hereunder and such costs and expenses shall constitute Losses subject to indemnification under Section 7.2(a) (but subject to the other limitations under this Article VII) but only if it is ultimately determined that the Third Party Claim itself is indemnifiable under Section 7.2(a).

Third Party Claims. If any claim for indemnification hereunder arises out of a third party commences any action or makes any demand claim against a Seller Indemnified Party, a Buyer Indemnified Party, or a SFI Indemnified Party (as defined below in Section 11(a)) for which such party (“Indemnified Party”) is entitled to indemnification under this AgreementSections 5.2 or 5.3 above (the "INDEMNIFIED PARTY") by a third party (a "THIRD PARTY CLAIM"), such the Indemnified Party will promptly notify the other party against which the claim for indemnification is made (“Indemnifying Party”) in writing of such action or demand; providedthe "INDEMNIFYING PARTY"), however, that if the Indemnified Party assumes the defense of the action and fails to provide prompt notice to the Indemnifying Party, such failure Party shall not limit in any way have the Indemnifying Party’s obligation to indemnify the Indemnified Party except to the extent that such failure materially prejudices the Indemnifying Party’s ability to defend the action. The Indemnifying Party mayright, at its own expense and without limiting expense, to compromise, settle or defend, at its obligation own expense, the Third-Party Claim. The Indemnified Party shall have the right to indemnify employ separate counsel to represent it, if in the Indemnified Party's reasonable judgment, participate it is advisable for the Indemnified Party to be represented by separate counsel, and in that event, the fees and expenses of such separate counsel shall be paid by the Indemnified Party. The Indemnified Party shall have the right to control the defense of any Third-Party Claim if it notifies the Indemnifying Party that it is assuming the defense of such action with counsel reasonably satisfactory claim and that the Indemnifying Party is relieved of its obligations to the Indemnified PartyParty with respect to such Third-Party Claim, or whereupon the Indemnifying Party may, at shall be relieved of its own expense obligations under this Article V with respect to such Third-Party Claim and without limiting its obligation any alleged breach of a representation or warranty relating to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified PartyThird-Party Claim. In any event, the Party that has assumed the defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (i) Except as provided in the case of preceding sentence, if the Indemnifying Party will does not elect to compromise, settle or defend the Third-Party Claim, it shall be unreasonably withheld in the event the settlement or adjustment involves only the payment of money damages bound by the Indemnifying Party and (ii) in the case of results obtained by the Indemnified Party will not with respect to such Third-Party Claim. Each of the parties hereto agrees to render to each other such assistance as may reasonably be unreasonably withheld; provided that such consent may be withheld if requested in order to insure the settlement or adjustment involves performance or admission by the Indemnified Party.proper and adequate defense of any Third-Party Claim. ARTICLE VI ---------- MISCELLANEOUS -------------